1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TERRANCE E. BOLDS, Case No. 20-cv-01735-JST

8 Plaintiff, ORDER OF SERVICE v. 9

10 ALAMEDA COUNTY SHERIFF'S DEPARTMENT, 11 Defendant.

12 13 14 Plaintiff, a civil detainee housed at Coalinga State Hospital, has filed a pro se action 15 pursuant to

, alleging that the Alameda County Sheriff’s Department violated his 16 constitutional rights while he was housed in Alameda County Jail from January 2016 to July 2018. 17 His complaint is now before the Court for review under 28 U.S.C. § 1915A. He has been granted 18 leave to proceed in forma pauperis in a separate order. 19 DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 22 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 23 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 24 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 25 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 26 (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police 27 Dep’t,

(9th Cir. 1988). 1 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 2 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 3 grounds upon which it rests.’” Erickson v. Pardus,

(2007) (citations omitted). 4 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 5 plaintiff’s obligation to provide the grounds of his ‘entitle[ment] to relief’ requires more than 6 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . 7 . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 8 Atlantic Corp. v. Twombly,

(2007) (citations omitted). A complaint must 9 proffer “enough facts to state a claim for relief that is plausible on its face.”

. 10 To state a claim under

, a plaintiff must allege two essential elements: 11 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 12 the alleged violation was committed by a person acting under the color of state law. See West v. 13 Atkins,

(1988). 14 B. Complaint 15 The complaint makes the following allegations. From January 2016 to July 26, 2018, 16 plaintiff was housed at Alameda County Jail as a civil detainee pursuant to the Sexually Violent 17 Predator Act,

, et seq. (“SVPA”). Per Alameda County policy, as 18 set by the Alameda County Sheriff’s Department, civil detainees detained pursuant to the SVPA 19 (“SVPs”) are housed in Administrative Segregation (“Ad-Seg”), where housing conditions are 20 significantly more restrictive than for other inmates. Inmates confined in Ad-Seg are only allowed 21 three hours a week in the dayroom, which means an hour a day every other day, and were only 22 allowed to shower during this same time, further restricting the time available for recreation or 23 other privileges. In addition, while plaintiff was housed in Ad-Seg, there were several times that 24 all the cell doors were left open at once, despite the SVPA’s requirement that SVPs be housed 25 separately from other inmates, thereby putting plaintiff’s life in danger. In contrast, inmates not 26 confined in Ad-Seg are allowed to use the dayroom, phone, and showers for six hours per day; 27 allowed to eat in a chow hall; and have access to a vending machine. During his time at Alameda 1 have more privileges, but he was told that “this is how classification classifies SVPs.” Plaintiff 2 alleges that Alameda County knew that they should have had a separate housing pod for SVPs and 3 that SVPs were entitled to more privileges than what was available in Ad-Seg, but refused to 4 ensure that SVPs had their privileges because the jail did not often house SVP civil detainees. 5 The Due Process Clause prohibits subjecting civil detainees to conditions that amount to 6 punishment. Jones v. Blanas,

(2004). Conditions of confinement are 7 presumptively punitive if they are more restrictive than those in which the civil detainee’s criminal 8 counterparts are being held.

Liberally construed, plaintiff’s allegations state a claim against 9 the Alameda County Sheriff’s Department for violation of his substantive due process rights. See 10 King v. County of Los Angeles,

(9th Cir. 2018). 11 CONCLUSION 12 For the foregoing reasons, the Court orders as follows. 13 1. Liberally construed, the complaint states a cognizable due process claim against 14 defendant Alameda County Sheriff’s Department. The Clerk shall issue summons and the United 15 States Marshal shall serve, without prepayment of fees, a copy of the complaint (ECF No. 1), with 16 all attachments thereto, and a copy of this order upon defendant Alameda County Sheriff’s 17 Department at 1401 Lakeside Drive, 12th Floor, Oakland, CA 94612-4305. A courtesy copy 18 of the complaint with attachments and this order shall also be mailed to the Alameda County 19 Counsel, at 1221 Oak Street, Suite 450, Oakland, CA 94612. 20 2. 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 must file 22 and serve a motion for summary judgment or other dispositive motion. If defendant is of the 23 opinion that this case cannot be resolved by summary judgment, defendant must so inform the 24 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,

(9th Cir. 27 1 2012) (notice requirement set out in Rand v. Rowland,

(9th Cir. 1998), must be 2 served concurrently with motion for summary judgment).1 3 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 4 must be filed with the Court and served upon defendant no later than 28 days from the date the 5 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 6 provided later in this order as he prepares his opposition to any motion for summary judgment. 7 c. Defendant shall file a reply brief no later than 14 days after the date the 8 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 9 hearing will be held on the motion. 10 3. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 11 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 12 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 13 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 14 any fact that would affect the result of your case, the party who asked for summary judgment is 15 entitled to judgment as a matter of law, which will end your case. When a party you are suing 16 makes a motion for summary judgment that is properly supported by declarations (or other sworn 17 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 18 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 19 as provided in Rule 56(c), that contradict the facts shown in the defendant’s declarations and 20 documents and show that there is a genuine issue of material fact for trial. If you do not submit 21 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 22 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 23 Rowland,

, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 24 25 1 If defendant asserts that plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), defendant must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca,

(9th Cir. 2014) 27 (en banc) (overruling Wyatt v. Terhune,

(9th Cir. 2003), which held that 1 not excuse defendant’s obligation to serve said notice again concurrently with a motion for 2 summary judgment. Woods,

). 3 4. All communications by plaintiff with the Court must be served on defendant’s 4 || counsel by mailing a true copy of the document to defendant’s counsel. The Court may disregard 5 any document which a party files but fails to send a copy of to his opponent. Until defendant’s 6 || counsel has been designated, plaintiff may mail a true copy of the document directly to defendant, 7 but once defendant is represented by counsel, all documents must be mailed to counsel rather than 8 || directly to defendant. 9 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 10 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 11 before the parties may conduct discovery. 12 6. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 5 13 Court informed of any change of address and must comply with the Court’s orders in a timely 14 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 3 15 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 16 || pending case every time he is moved to a new facility. 3 17 7. Any motion for an extension of time must be filed no later than the deadline sought 18 to be extended and must be accompanied by a showing of good cause. 19 8. Plaintiff is cautioned that he must include the case name and case number for this 20 || case on any document he submits to the Court for consideration in this case. 21 IT IS SO ORDERED. 22 Dated: September 17, 2020 . °

23 JON S. TIGA 94 nited States District Judge 25 26 27 28