Travis v. Gomez

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 CURTIS TRAVIS, Case No. 22-cv-04199-HSG 8 Plaintiff, ORDER OF SERVICE 9 v. Re: Dkt. No. 22 10 GOMEZ, et al., 11 Defendants. [12] 13 Plaintiff, an inmate at Salinas Valley State Prison, has filed a pro se action pursuant to 42 14 U.S.C. § 1983 . His amended complaint (Dkt. No. 22) is now before the Court for review under 28 15 U.S.C. § 1915A. 16 DISCUSSION 17 A. Standard of Review 18 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 19 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 20 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 21 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 22 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 23 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 24 989, 993 (9th Cir. 2020). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 27 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 1 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 2 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662 , 677–78 (2009). 3 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 4 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 5 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential elements: (1) that a 6 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 7 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 8 U.S. 42, 48 (1988). 9 B. Amended Complaint 10 In the amended complaint, Plaintiff alleges that, on August 22, 2022, as he was being 11 escorted to A Yard in cuffs and in his back brace and walking with a cane, correctional officer J. 12 Gomez yelled, “Well kick his asshole head,” and in response, correctional officers Barnes, 13 Ramerize, and Muniz began punching and kicking Plaintiff all over his body. Plaintiff screamed 14 for help but no one came. Plaintiff yelled to LVN D. Ramirez for help, but she walked away with 15 defendant Gomez. Plaintiff was beaten unconscious. Liberally construed, Plaintiff’s allegations 16 state a cognizable Eighth Amendment claim for excessive use of force against correctional officers 17 J. Gomez, Barnes, Ramerize, and Muniz and against nurse D. Ramirez. Hudson v. McMillian, 503 18 U.S. 1, 6-7 (1992) (in its prohibition of “cruel and unusual punishment,” Eighth Amendment 19 places restraints on prison officials, who may not, for example, use excessive force against 20 prisoners). 21 CONCLUSION 22 For the reasons set forth above, the Court orders as follows. 23 1. The following defendant(s) shall be served: Salinas Valley State Prison correctional 24 officers J. Gomez, Barnes, Ramerize, and Muniz and Salinas Valley State Prison nurse D. 25 Ramirez. 26 Service on the listed defendant(s) shall proceed under the California Department of 27 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners 1 CDCR via email the following documents: the operative complaint (ECF No. 1), this order of 2 service, a CDCR Report of E-Service Waiver form and a summons. The Clerk also shall serve a 3 copy of this order on the Plaintiff. 4 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 5 provide the court a completed CDCR Report of E-Service Waiver advising the court which 6 defendant(s) listed in this order will be waiving service of process without the need for service by 7 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 8 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 9 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 10 a waiver of service of process for the defendant(s) who are waiving service. 11 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 12 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 13 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 14 of this order, the summons, and the operative complaint for service upon each defendant who has 15 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E16 Service Waiver. 17 2. The complaint states a cognizable Eighth Amendment claim against defendants 18 Salinas Valley State Prison correctional officers J. Gomez, Barnes, Ramerize, and Muniz and 19 Salinas Valley State Prison nurse D. Ramirez. The Clerk shall add these defendants to the caption. 20 3. In order to expedite the resolution of this case, the Court orders as follows: 21 a. No later than 91 days from the date this order is filed, Defendant(s) must 22 file and serve a motion for summary judgment or other dispositive motion. If Defendant(s) is(are) 23 of the opinion that this case cannot be resolved by summary judgment, Defendants must so inform 24 the Court prior to the date the motion is due. A motion for summary judgment also must be 25 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what 26 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 27 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 1 served concurrently with motion for summary judgment).1 2 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 3 must be filed with the Court and served upon Defendant(s) no later than 28 days from the date the 4 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 5 provided later in this order as he prepares his opposition to any motion for summary judgment. 6 Defendant(s) shall file a reply brief no later than 14 days after the date the opposition is filed. The 7 motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on 8 the motion. 9 4. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 10 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 11 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 12 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 13 any fact that would affect the result of your case, the party who asked for summary judgment is 14 entitled to judgment as a matter of law, which will end your case. When a party you are suing 15 makes a motion for summary judgment that is properly supported by declarations (or other sworn 16 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 17 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 18 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and 19 documents and show that there is a genuine issue of material fact for trial. If you do not submit 20 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 21 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 22 Rowland, 154 F.3d 952 , 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 23 not excuse Defendants’ obligation to serve said notice again concurrently with a motion for 24 summary judgment. Woods, 684 F.3d at 939 ). [25] 1 If Defendant(s) assert(s) that Plaintiff failed to exhaust his available administrative remedies as [26] required by 42 U.S.C. § 1997e(a), Defendant(s) must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th [27] Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which 1 5. All communications by Plaintiff with the Court must be served on Defendants’ 2 || counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard 3 any document which a party files but fails to send a copy of to his opponent. Until Defendants’ 4 || counsel has been designated, Plaintiff may mail a true copy of the document directly to 5 Defendants but once Defendants are represented by counsel, all documents must be mailed to 6 || counsel rather than directly to Defendants. 7 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 8 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 9 || before the parties may conduct discovery. 10 7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 11 Court informed of any change of address and must comply with the Court’s orders in a timely 12 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 5 13 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 14 || pending case every time he is moved to a new facility. 15 8. Any motion for an extension of time must be filed no later than the deadline sought 16 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 3 17 he must include the case name and case number for this case on any document he submits to the S 18 Court for consideration in this case. 19 IT IS SO ORDERED. 20 || Dated: 12/19/2022 Alnpweel 8 |p. HAYWOOD S. GILLIAM, JR. 22 United States District Judge