Revelez v. Allison

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] RICHARD REVELEZ, 11 Case No. 22-cv-01738 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE v. 13 DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 MOTION; DENYING REQUEST KATHLEEN ALLISON, et al., FOR LEGAL ASSISTANCE; 15 INSTRUCTIONS TO CLERK Defendants. [17] 18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against Kathleen Allison, the Secretary of the California Department of 20 Corrections and Rehabilitation (“CDCR”), and “multiple doe defendants” at San Quentin 21 State Prison (“SQSP”) where the underlying incident occurred. Dkt. No. 1 at 2. The Court 22 dismissed the complaint with leave to amend to correct various deficiencies. Dkt. No. 9. 23 Plaintiff filed an “amended complaint” which appears to be an amendment to the 24 complaint rather than an amended complaint, superseding the original. Dkt. No. 12. 25 Accordingly, the Court shall consider whether the information provided in this filing 26 corrects any of the deficiencies discussed in its screening order. 27 /// 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 In the screening order, the Court found the complaint stated a cognizable failure-to16 protect claim against Sgt. Tomaso based on an assault by other inmates on March 16, 17 2018, when he was placed in general population despite his “sensitive needs yard” status. 18 Dkt. No. 9 at 3. However, the allegations were insufficient to state a claim against 19 Defendant Secretary Kathleen Allison. Id. Plaintiff was granted leave to amend this 20 claim. Id. Plaintiff was also advised that with respect to “multiple doe defendants,” he 21 must at least describe the individual’s actions, as well as the date and location of the 22 deprivation. Id. at 4. The Court would then consider whether his allegations are sufficient 23 to state a cognizable claim against the unidentified Defendants and permit Plaintiff an 24 opportunity to ascertain their identify through discovery. Id. 25 Plaintiff’s amendment attempts to identify some of the “doe defendants.” Dkt. No. 26 12. Plaintiff also requests legal assistances to identify more defendants because he does 1 The Court construes this request as a second motion for appointment of counsel and 2 DENIES it for lack of exceptional circumstances. See Dkt. No. 9 at 4-5, citing Agyeman v. 3 Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand v. Rowland, 113 4 F.3d 1520, 1525 (9th Cir. 1997). 5 Plaintiff names the following defendants who were at SQSP on March 15, 2018, in 6 West Block: (1) “C.O.s at desk who openly belittled me”; (2) “2nd watch sergeant 7 (Whitney?) who told me he would not move me after I told him I was threatened and 8 didn’t feel safe at CCI Tehapachi on January 3, 2018”; and (3) C.C.2 C. Yerton who 9 assured me that the staff where I was transferring to had been trained to function with 10 S.N.Y. inmates.” Dkt. No. 12 at 3. Plaintiff claims that these defendants along with Sgt. 11 Tomaso “had the opportunity and obligation to protect me and abated it” and that “they 12 were significant influences to me being a victim of a brutal assault by several inmates who 13 were charged with attempted murder.” Id. at 3-4. 14 The Eighth Amendment requires that prison officials take reasonable measures to 15 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 824 , 832 (1994). In 16 particular, prison officials have a duty to protect prisoners from violence at the hands of 17 other prisoners. Id. at 833; Cortez v. Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. 18 Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect 19 inmates from attacks by other inmates or from dangerous conditions at the prison violates 20 the Eighth Amendment when two requirements are met: (1) the deprivation alleged is, 21 objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately 22 indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison official is 23 deliberately indifferent if he knows of and disregards an excessive risk to inmate health or 24 safety by failing to take reasonable steps to abate it. Id. at 837. Allegations in a pro se 25 complaint sufficient to raise an inference that the named prison officials knew that plaintiff 26 faced a substantial risk of serious harm and disregarded that risk by failing to take 1 1041-42 (citing Farmer, 511 U.S. at 847). 2 The new allegations in the amendment are sufficient to state a claim against 3 Defendant “Whitney,” who was aware of the threats against Plaintiff but refused to move 4 him. However, the allegations are insufficient to state a claim against correctional officers 5 who “belittled” Plaintiff or C. Yerton. The fact that Plaintiff was “belittled” is not 6 sufficient to establish the requisite state of mind, i.e., that this officer knew of and 7 disregarded an excessive risk to Plaintiff’s safety. Furthermore, Plaintiff’s allegation that 8 C. Yerton said that Plaintiff was being transferred to a place with staff who were “trained 9 to function with S.N.Y. inmates” raises the inference that Mr. Yerton believed Plaintiff 10 would be safe, not that Plaintiff would be facing a substantial risk of serious harm. 11 Accordingly, the Court will order this matter served on Defendant Tomaso and newly 12 identified Sergeant Whitney. [13] 14 CONCLUSION 15 For the foregoing reasons, the Court orders as follows: 16 1. This action is proceeding on the failure-to-protect claim against Defendants 17 Tomaso and Whitney. 18 The Clerk shall terminate Defendant Kathleen Allison from this action because 19 there are no cognizable claims against her. 20 2. The following defendants shall be served at SQSP: 21 a. Sergeant D. Tomaso (West Block in March 2018) 22 b. Sergeant Whitney (West Block in March 2018) 23 Service on the listed defendant(s) shall proceed under the California Department of 24 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 25 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 26 on CDCR via email the following documents: the operative complaint and any attachments 1 form. The clerk also shall serve a copy of this order on the plaintiff. 2 No later than 40 days after service of this order via email on CDCR, CDCR shall 3 provide the court a completed CDCR Report of E-Service Waiver advising the court which 4 defendant(s) listed in this order will be waiving service of process without the need for 5 service by the United States Marshal Service (USMS) and which defendant(s) decline to 6 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 7 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 8 days, shall file with the court a waiver of service of process for the defendant(s) who are 9 waiving service. 10 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 11 each defendant who has not waived service according to the CDCR Report of E-Service 12 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 13 forms and copies of this order, the summons and the operative complaint for service upon 14 each defendant who has not waived service. The clerk also shall provide to the USMS a 15 copy of the CDCR Report of E-Service Waiver. 16 3. No later than ninety-one (91) days from the date this order is filed, 17 Defendants shall file a motion for summary judgment or other dispositive motion with 18 respect to the claims in the complaint found to be cognizable above. 19 a. Any motion for summary judgment shall be supported by adequate 20 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 21 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 22 qualified immunity found, if material facts are in dispute. If any Defendant is of the 23 opinion that this case cannot be resolved by summary judgment, he shall so inform the 24 Court prior to the date the summary judgment motion is due. 25 b. In the event Defendants file a motion for summary judgment, the 26 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 1 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 2 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 3 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 4 motion is filed. 5 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 6 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 7 must come forward with evidence showing triable issues of material fact on every essential 8 element of his claim). Plaintiff is cautioned that failure to file an opposition to 9 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 10 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 11 Ghazali v. Moran, 46 F.3d 52 , 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 12 F.3d 651, 653 (9th Cir. 1994). 13 5. Defendants shall file a reply brief no later than fourteen (14) days after 14 Plaintiff’s opposition is filed. 15 6. The motion shall be deemed submitted as of the date the reply brief is due. 16 No hearing will be held on the motion unless the Court so orders at a later date. 17 7. All communications by the Plaintiff with the Court must be served on 18 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 19 copy of the document to Defendants or Defendants’ counsel. 20 8. Discovery may be taken in accordance with the Federal Rules of Civil 21 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 22 Rule 16-1 is required before the parties may conduct discovery. 23 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 24 court informed of any change of address and must comply with the court’s orders in a 25 timely fashion. Failure to do so may result in the dismissal of this action for failure to 26 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 1 || extended and must be accompanied by a showing of good cause. 2 IT IS SO ORDERED. 3 || Dated: □□ February 27, 2023 Loolufhacnan 4 BETH LABSON FREEMAN United States District Judge [10] 1] [14] o [16] © Z 18 [24] 25 Order of Service; Deny Req. for Legal Assist. PRO-SE\BLF\CR.22\01738Revelez_svc&atty