1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 CYMEYON V. HILL, 4 Case No. 20-cv-04027-YGR (PR) Plaintiff, 5 ORDER OF PARTIAL DISMISSAL v. AND SERVICE 6 OFFICER DE FRANCO, et al., 7 Defendants. 8

9 I. INTRODUCTION 10 Plaintiff, a civil detainee currently being held in custody at Salinas Valley State Prison 11 (“SVSP”), filed a pro se civil rights complaint pursuant to

. Thereafter, Plaintiff 12 filed an amended complaint, which is the operative complaint in this action. Dkt. 5. 13 Venue is proper because the events giving rise to the claim is alleged to have occurred in 14 SVSP, which is located in this judicial district. See

(b). 15 Plaintiff named the following SVSP prison staff as Defendants: SVSP Correctional 16 Officers De Franco, Juarez,1 Hammel, Infante, Cary, Florez, and Beam.2 Dkt. 5 at 4.3 Plaintiff 17 seeks injunctive relief and punitive damages.

. 18 II. DISCUSSION 19 A. Standard of Review 20 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 21

22 1 The Clerk of the Court listed one of the named defendants as “Officer Fuarez” because Plaintiff’s handwriting on his amended complaint is difficult to decipher. See Dkt. 5 at 1, 4. 23 However, upon reading the amended complaint more closely, the Court has deciphered Plaintiff’s handwriting and directs the Clerk to correct the spelling of this Defendant’s name from “Officer 24 Fuarez” to “Officer Juarez.” See

25 2 A defendant named in the original complaint, Chief Deputy Warden R. Parin, is not included as a defendant in the amended complaint, and the claims against him are accordingly 26 DISMISSED. See Ferdik v. Bonzelet,

(9th Cir. 1992) (finding defendants not named in amended complaint are no longer defendants). 27 1 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 2 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 3 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 4 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 5 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 6 Cir. 1988). 7 To state a claim under

, a plaintiff must allege two essential elements: 8 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 9 the alleged violation was committed by a person acting under the color of state law. West v. 10 Atkins,

(1988). 11 B. Legal Claims 12 Plaintiff, who was civilly committed in 1997 following a plea of not guilty by reason of 13 insanity, alleges the following claims : (1) a claim of deliberate indifference to his safety needs in 14 violation of his Eighth Amendment rights, stemming from a May 23, 2020 incident in which he 15 was attacked by another inmate at SVSP (inmate Flanagan), and Plaintiff has adequately linked all 16 the named Defendants to his claim for failing to intervene to prevent the attack; (2) a claim of the 17 use of excessive force in violation of Plaintiff’s Eighth Amendment rights against Defendant De 18 Franco, stemming from the May 23, 2020 incident in which Defendant De Franco “shot Plaintiff 19 on the right side of the body with [a] 40 mm[.] launcher gun for no reason”; (3) claim of deliberate 20 indifference to Plaintiff’s serious medical needs in violation of his Eighth Amendment rights, 21 stemming from the failure to properly treat his injuries stemming from the May 23, 2020 incident, 22 and Plaintiff has adequately linked all the named Defendants to his claim; and (4) a claim for 23 retaliation based on the named Defendants’ failure to protect Plaintiff from being assaulted during 24 the May 23, 2020 incident and taking “almost 20 to 30 minutes to intervene causing Plaintiff to 25 sustain multiple injuries” and then “laughing [and] stating to Plaintiff that [he] got [his] ass kicked 26 [so] . . . that will teach [him] about filing grievances against [them].” Dkt. 5 at 3, 5. 27 Plaintiff has stated a cognizable First Amendment retaliation claim as well as a cognizable 1 against all named Defendants. Plaintiff has also stated a cognizable Eighth Amendment excessive 2 force claim against Defendant De Franco. 3 III. CONCLUSION 4 For the foregoing reasons, the Court orders as follows: 5 1. Plaintiff has stated a cognizable First Amendment retaliation claim as well as a 6 cognizable Eighth Amendment claims for deliberate indifference to his safety and serious medical 7 needs against all named Defendants. 8 2. Plaintiff has stated a cognizable Eighth Amendment excessive force claim against 9 Defendant De Franco. 10 3. The Court DISMISSES all claims against Chief Deputy Warden R. Parin, a 11 defendant named in the original complaint but who was not included as a defendant in the 12 amended complaint. See Ferdik,

. 13 4. The Clerk shall mail a Notice of Lawsuit and Request for Waiver of Service of 14 Summons, two copies of the Waiver of Service of Summons, a copy of the amended complaint and 15 all attachments thereto (dkt. 5), and a copy of this Order to the following Defendants at SVSP: 16 SVSP Correctional Officers De Franco, Juarez, Hammel, Infante, Cary, Florez, and Beam. 17 The Clerk shall also mail a copy of the amended complaint and a copy of this Order to the State 18 Attorney General’s Office in San Francisco. Additionally, the Clerk shall mail a copy of this Order 19 to Plaintiff. 20 5. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 21 requires them to cooperate in saving unnecessary costs of service of the summons and amended 22 complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the 23 Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, Defendants will be 24 required to bear the cost of such service unless good cause can be shown for the failure to sign and 25 return the waiver form. If service is waived, this action will proceed as if Defendants had been 26 served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will 27 not be required to serve and file an answer before sixty (60) days from the date on which the 1 service of summons is necessary.) Defendants are asked to read the statement set forth at the foot 2 of the waiver form that more completely describes the duties of the parties with regard to waiver of 3 service of the summons. If service is waived after the date provided in the Notice but before 4 Defendants have been personally served, the Answer shall be due sixty (60) days from the date on 5 which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, 6 whichever is later. 7 6. Defendants shall answer the amended complaint in accordance with the Federal 8 Rules of Civil Procedure. The following briefing schedule shall govern dispositive motions in this 9 action: 10 a. No later than sixty (60) days from the date their answer is due, Defendants 11 shall file a motion for summary judgment or other dispositive motion. The motion must be 12 supported by adequate factual documentation, must conform in all respects to Federal Rule of Civil 13 Procedure 56, and must include as exhibits all records and incident reports stemming from the 14 events at issue. A motion for summary judgment also must be accompanied by a Rand4 notice so 15 that Plaintiff will have fair, timely, and adequate notice of what is required of him in order to 16 oppose the motion. Woods v. Carey,

(9th Cir. 2012) (notice requirement set out 17 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss for 18 failure to exhaust available administrative remedies must be accompanied by a similar notice. 19 However, the Court notes that under the new law of the circuit, in the rare event that a failure to 20 exhaust is clear on the face of the amended complaint, Defendants may move for dismissal under 21 Rule 12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 12(b) 22 motion. Albino v. Baca,

(9th Cir. 2014) (overruling Wyatt v. Terhune, 315

(9th Cir. 2003), which held that failure to exhaust available administrative 24 remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a 25 defendant as an unenumerated Rule 12(b) motion). Otherwise, if a failure to exhaust is not clear on 26 the face of the amended complaint, Defendants must produce evidence proving failure to exhaust in 27 1 a motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light 2 most favorable to Plaintiff shows a failure to exhaust, Defendants are entitled to summary judgment 3 under Rule 56. Id. But if material facts are disputed, summary judgment should be denied and the 4 district judge, rather than a jury, should determine the facts in a preliminary proceeding. Id. at 5 1168. 6 If Defendants are of the opinion that this case cannot be resolved by summary judgment, 7 Defendants shall so inform the Court prior to the date the summary judgment motion is due. All 8 papers filed with the Court shall be promptly served on Plaintiff. 9 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 10 and served on Defendants no later than twenty-eight (28) days after the date on which Defendants’ 11 motion is filed. 12 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 13 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 14 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 15 granted when there is no genuine issue of material fact—that is, if there is no real dispute about any 16 fact that would affect the result of your case, the party who asked for summary judgment is entitled 17 to judgment as a matter of law, which will end your case. When a party you are suing makes a 18 motion for summary judgment that is supported properly by declarations (or other sworn 19 testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific 20 facts in declarations, depositions, answers to interrogatories, or authenticated documents, as 21 provided in Rule 56(c), that contradict the facts shown in the defendant’s declarations and 22 documents and show that there is a genuine issue of material fact for trial. If you do not submit 23 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 24 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 25 F.3d at 962-63. 26 Plaintiff also is advised that—in the rare event that Defendants argue that the failure to 27 exhaust is clear on the face of the amended complaint—a motion to dismiss for failure to exhaust 1 without prejudice. To avoid dismissal, you have the right to present any evidence to show that you 2 did exhaust your available administrative remedies before coming to federal court. Such evidence 3 may include: (1) declarations, which are statements signed under penalty of perjury by you or 4 others who have personal knowledge of relevant matters; (2) authenticated documents—documents 5 accompanied by a declaration showing where they came from and why they are authentic, or other 6 sworn papers such as answers to interrogatories or depositions; (3) statements in your amended 7 complaint insofar as they were made under penalty of perjury and they show that you have personal 8 knowledge of the matters state therein. As mentioned above, in considering a motion to dismiss for 9 failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment motion under 10 Rule 56, the district judge may hold a preliminary proceeding and decide disputed issues of fact 11 with regard to this portion of the case. Albino,

. 12 (The notices above do not excuse Defendants’ obligation to serve similar notices again 13 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 14 motions for summary judgment. Woods,

.) 15 d. Defendants shall file a reply brief no later than fourteen (14) days after the 16 date Plaintiff’s opposition is filed. 17 e. The motion shall be deemed submitted as of the date the reply brief is due. 18 No hearing will be held on the motion unless the Court so orders at a later date. 19 7. Discovery may be taken in this action in accordance with the Federal Rules of Civil 20 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose 21 Plaintiff and any other necessary witnesses confined in prison. 22 8. All communications by Plaintiff with the Court must be served on Defendants or 23 Defendants’ counsel, once counsel has been designated, by mailing a true copy of the document to 24 them. 25 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 26 informed of any change of address and must comply with the Court’s orders in a timely fashion. 27 Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 1 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 2 || directed to the pro se party by the Court has been returned to the Court as not deliverable, and 3 (2) the Court fails to receive within sixty days of this return a written communication from the pro 4 || se party indicating a current address. See L.R. 3-11(b). 5 10. Upon a showing of good cause, requests for a reasonable extension of time will be 6 || granted provided they are filed on or before the deadline they seek to extend. 7 IT IS SO ORDERED. 8 Dated: December 15, 2020 YVONNE GONZALEZ ROGERS 9 United States District Judge 10 11 12

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