Legardy v. Redon

[1] 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA [4] 5 RONALD LEGARDY, Case No. 20-cv-05716-RMI 6 Plaintiff, ORDER OF SERVICE v. [7] 8 M.B. ATCHLEY, et al., Defendants. [10] 11 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 . 12 The amended complaint was dismissed with leave to amend and Plaintiff has filed a second 13 amended complaint. 14 LEGAL STANDARDS 15 Federal courts must engage in a preliminary screening of cases in which prisoners seek 16 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 17 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any claims 18 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 19 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 20 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 21 Cir. 1990). 22 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 23 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement 24 need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it 25 rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although in order to state a 26 claim a complaint “does not need detailed factual allegations . . . a plaintiff’s obligation to provide 27 the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a 1 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, [2] 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a 3 claim to relief that is plausible on its face.” Id. at 570 . The United States Supreme Court has 4 recently explained the “plausible on its face” standard of Twombly as such: “[w]hile legal 5 conclusions can provide the framework of a complaint, they must be supported by factual 6 allegations . . . [and] [w]hen there are well-pleaded factual allegations, a court should assume their 7 veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft 8 v. Iqbal, 556 U.S. 662, 679 (2009). 9 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential elements: (1) 10 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 11 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, [12] 487 U.S. 42, 48 (1988). 13 DISCUSSION 14 Plaintiff alleges that Defendants failed to protect him from sexual assaults by his cellmate. 15 The Eighth Amendment requires that prison officials take reasonable measures to guarantee the 16 safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, prison officials 17 have a duty to protect prisoners from violence at the hands of other prisoners. Id. at 833 ; Cortez v. 18 Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 19 2005). The failure of prison officials to protect inmates from attacks by other inmates or from 20 dangerous conditions at the prison violates the Eighth Amendment when two requirements are 21 met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, 22 subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834 . A prison 23 official is deliberately indifferent if he or she knows of and disregards an excessive risk to a 24 prisoner’s health or safety by failing to take reasonable steps to abate the risk. Id. at 837 . 25 Allegations in a pro se complaint sufficient to raise an inference that the named prison 26 officials knew that Plaintiff faced a substantial risk of serious harm, and disregarded that risk by 27 failing to take reasonable measures to abate it, are sufficient to state a failure-to-protect claim. See 1 Plaintiff states that he reported to Defendants Gonzalez, Redon and Fernandez that his 2 cellmate was attempting to sexually assault him, but that Defendants failed to act, and that his 3 cellmate later sexually assaulted him. Liberally construed, this presents an Eighth Amendment 4 claim against these Defendants. Additionally, in his second amended complaint, Plaintiff has 5 voluntarily dismissed the other claim, and the other Defendant, from the amended complaint that 6 were discussed in the court’s prior screening order. Pursuant to Federal Rule of Civil Procedure 7 21, they are no longer part of this action. 8 CONCLUSION 9 The clerk shall ISSUE a summons and the United States Marshal shall serve, without 10 prepayment of fees, copies of the Second Amended Complaint (dkt. 19) with attachments, a 11 Magistrate Judge jurisdiction consent form and copies of this Order on the following Defendant 12 Correctional Officers at Salinas Valley State Prison: J. Gonzalez, O. Redon and J. Fernandez. 13 In order to expedite the resolution of this case, the Court orders as follows: 14 No later than sixty days from the date of service, Defendants shall file a motion for 15 summary judgment or other dispositive motion. The motion shall be supported by adequate factual 16 documentation and shall conform in all respects to Federal Rule of Civil Procedure 56 and shall 17 include as exhibits all records and incident reports stemming from the events at issue. If 18 Defendants are of the opinion that this case cannot be resolved by such a motion, they shall so 19 inform the Court prior to the date that the such motion is due. Moreover, all papers filed with the 20 Court shall be promptly served on Plaintiff. 21 At the time the dispositive motion is served, Defendants shall also serve, on a separate 22 paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th 23 Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108 , 1120 n. 4 (9th Cir. 2003); see Woods 24 v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (finding that Rand and Wyatt notices must be 25 given at the time motions for summary judgment or motion to dismiss for non-exhaustion are 26 filed, not earlier); Rand, 154 F.3d at 960 (establishing the separate paper requirement). 27 Plaintiff’s opposition to the dispositive motion, if any, shall be filed with the Court and 1 Additionally, Plaintiff must read the attached page headed “NOTICE — WARNING,” which is 2 provided to him pursuant to Rand, 154 F.3d at 953-954 , and Klingele v. Eikenberry, 849 F.2d 409 , 3 || 411-12 (th Cir. 1988). 4 If Defendants file a motion for summary judgment claiming that Plaintiff failed to exhaust 5 his available administrative remedies as required by 42 U.S.C. § 1997e(a), Plaintiff should take 6 || note of the attached page headed “NOTICE — WARNING (EXHAUSTION),” which is provided 7 to him as required by Wyatt, 315 F.3d at 1120 n. 4. 8 If Defendants wish to file a reply brief, they shall do so no later than fifteen days after the 9 opposition is served. The motion shall be deemed submitted as of the date the reply brief is due. 10 || No hearing will be held on the motion unless the Court so orders at a later date. All 11 communications by Plaintiff with the Court must be served on Defendants, or Defendants’ 12 || counsel, if and when counsel has been designated, by mailing a true copy of the document to 5 13 || Defendants or Defendants’ counsel. Discovery may be taken in accordance with the Federal Rules 14 of Civil Procedure. No further Court order under Federal Rule of Civil Procedure 30(a)(2) is 3 15 required before the parties may conduct discovery. z 16 Finally, it is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 5 17 informed of any change of address by filing a separate paper with the clerk headed “Notice of S 18 || Change of Address.” He also must comply with the Court’s orders in a timely fashion. Failure to 19 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 20 Civil Procedure 41(b). 21 IT IS SO ORDERED. 22 || Dated: February 2, 2020 23 ff | ROBERT M. ILLMAN United States Magistrate Judge [28] 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in the defendant’s declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 NOTICE -- WARNING (EXHAUSTION) 18 If defendants file a motion for summary judgment for failure to exhaust, they are seeking 19 to have your case dismissed. If the motion is granted it will end your case. 20 You have the right to present any evidence you may have which tends to show that you did 21 exhaust your administrative remedies. Such evidence may be in the form of declarations 22 (statements signed under penalty of perjury) or authenticated documents, that is, documents 23 accompanied by a declaration showing where they came from and why they are authentic, or other 24 sworn papers, such as answers to interrogatories or depositions. If defendants file a motion for 25 summary judgment for failure to exhaust and it is granted, your case will be dismissed and there 26 will be no trial.