1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 CYMEYON HILL, 5 Case No. 20-cv-05900-YGR (PR) Plaintiff, 6 v. ORDER OF SERVICE 7 E. BLACK, et al., 8 Defendants. 9

10 I. INTRODUCTION 11 Plaintiff, a civil detainee, filed a pro se civil rights complaint under

. 12 Dkt. 1. Thereafter, Plaintiff filed an amended complaint, which is the operative complaint in this 13 action. Dkt. 9. He alleges violations of his constitutional rights by prison officials and medical 14 staff at Salinas Valley State Prison (“SVSP”). See

15 The Court will grant his motion for leave to proceed in forma pauperis in a separate 16 written Order. 17 In his amended complaint, Plaintiff names the following Defendants at SVSP: Sgt. E. 18 Black; Officers D. Leach,1 R. Borrego, E. Avila, N. Reese, and J. Garcia2; and Registered Nurse 19 Augustin. Dkt. 9 at 3.3 Plaintiff seeks injunctive relief and monetary damages.

. 20 Venue is proper because certain events giving rise to the claims are alleged to have 21 occurred at SVSP, which is located in this judicial district. See

(b). The Court 22 now conducts its initial review of the amended complaint pursuant to 28 U.S.C. § 1915A. 23

24 1 This Defendant’s first initial is incorrectly listed as “N. Leach” in the Court’s docket, but the correct initial should be listed as “D. Leach.” See Dkt. 9 at 3. 25 2 This Defendant is incorrectly listed as “Sheriff F. Garcia” and “Officer T. Garcia” in the 26 Court’s docket, but this Defendant should be listed as “Officer J. Garcia.” See Dkt. 9 at 3.

27 3 Page number citations refer to those assigned by the Court’s electronic case management II. DISCUSSION 1 A. Standard of Review 2 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 3 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 4 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 5 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 6 monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). 7 Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep’t, 8

(9th Cir. 1988). 9 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 10 claim showing that the pleader is entitled to relief.” To comport with Rule 8, “[s]pecific facts are 11 not necessary; the statement need only give the defendant fair notice of what the . . . claim is and 12 the grounds upon which it rests.” Erickson v. Pardus,

(2007) (citations omitted). 13 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 14 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than 15 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 16 do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” 17 Bell Atlantic Corp. v. Twombly,

(2007) (citations omitted). A complaint must 18 proffer “enough facts to state a claim to relief that is plausible on its face.”

. The United 19 States Supreme Court has explained the “plausible on its face” standard of Twombly: “While legal 20 conclusions can provide the complaint’s framework, they must be supported by factual 21 allegations. When there are well-pleaded factual allegations, a court should assume their veracity 22 and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 23

(2009). 24 To state a claim under

, a plaintiff must allege two essential elements: 25 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 26 the alleged violation was committed by a person acting under color of state law. See West v. 27 Atkins,

(1988). 1 A supervisor may be liable under section 1983 upon a showing of personal involvement in 2 the constitutional deprivation or a sufficient causal connection between the supervisor’s wrongful 3 conduct and the constitutional violation. Redman v. County of San Diego,

, 1446 4 (9th Cir. 1991) (en banc) (citation omitted). A supervisor therefore generally “is only liable for 5 constitutional violations of his subordinates if the supervisor participated in or directed the 6 violations, or knew of the violations and failed to act to prevent them.” Taylor v. List,

(9th Cir. 1989). This includes evidence that a supervisor implemented “a policy so 8 deficient that the policy itself is a repudiation of constitutional rights and is the moving force of 9 the constitutional violation.” Redman,

; see Jeffers v. Gomez,

, 917 10 (9th Cir. 2001). 11 III. LEGAL CLAIMS 12 Plaintiff alleges claims stemming from a cell extraction on August 4, 2020, which the 13 Court has summarized as the following: (1) an excessive force claim in violation of his Eighth 14 Amendment rights, and Plaintiff has adequately linked Defendants Black, Leach, Borrego, Avila, 15 Reese, and Garcia to his claim based on Defendant Leach’s acts of “striking Plaintiff with [a] 16 baton in [his] left shoulder and [the] side [his] head,” as well as Defendants’ acts of “punching and 17 kicking Plaintiff after he was in full leg restraints for several minutes” and “repeatedly smashing 18 Plaintiff’s face and neck into the floor with the[ir] knees and arms”; and (2) a claim of deliberate 19 indifference to Plaintiff’s serious medical needs in violation of his Eighth Amendment rights, 20 stemming from Defendant Augustin’s failure to properly treat Plaintiff’s injuries to his head and 21 shoulders stemming from the August 4, 2020 incident. Dkt. 1 at 5, 7, 9. 22 Plaintiff has stated cognizable Eighth Amendment claims of: (1) excessive force against 23 Defendants Black, Leach, Borrego, Avila, Reese, and Garcia; and (2) deliberate indifference to his 24 serious medical needs against Defendant Augustin. 25 IV. CONCLUSION 26 For the foregoing reasons, the Court orders as follows: 27 1. Plaintiff has stated cognizable Eighth Amendment claims of: (1) excessive force 1 indifference to his serious medical needs against Defendant Augustin. 2 2. The Clerk shall send a Notice of Lawsuit and Request for Waiver of Service of 3 Summons, two copies of the Waiver of Service of Summons, a copy of the amended complaint 4 and all attachments thereto (dkt. 9), and a copy of this Order to the following Defendants at SVSP: 5 Sgt. E. Black; Officers D. Leach, R. Borrego, E. Avila, N. Reese, and J. Garcia; and 6 Registered Nurse Augustin. The Clerk shall also send a copy of the amended complaint and a 7 copy of this Order to the State Attorney General’s Office in San Francisco. Additionally, the 8 Clerk shall send a copy of this Order to Plaintiff. 9 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 10 requires them to cooperate in saving unnecessary costs of service of the summons and amended 11 complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the 12 Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, Defendants will be 13 required to bear the cost of such service unless good cause can be shown for the failure to sign and 14 return the waiver form. If service is waived, this action will proceed as if Defendants had been 15 served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants 16 will not be required to serve and file an answer before sixty (60) days from the date on which the 17 request for waiver was sent. (This allows a longer time to respond than would be required if 18 formal service of summons is necessary.) Defendants are asked to read the statement set forth at 19 the foot of the waiver form that more completely describes the duties of the parties with regard to 20 waiver of service of the summons. If service is waived after the date provided in the Notice but 21 before Defendants have been personally served, the Answer shall be due sixty (60) days from the 22 date on which the request for waiver was sent or twenty (20) days from the date the waiver form 23 is filed, whichever is later. 24 4. Defendants shall answer the amended complaint in accordance with the Federal 25 Rules of Civil Procedure. The following briefing schedule shall govern dispositive motions in this 26 action: 27 a. No later than sixty (60) days from the date their answer is due, Defendants 1 supported by adequate factual documentation, must conform in all respects to Federal Rule of 2 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 3 the events at issue. A motion for summary judgment also must be accompanied by a Rand4 notice 4 so that Plaintiff will have fair, timely, and adequate notice of what is required of him in order to 5 oppose the motion. Woods v. Carey,

(9th Cir. 2012) (notice requirement set out 6 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 7 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 8 However, the Court notes that under the new law of the circuit, in the rare event that a failure to 9 exhaust is clear on the face of the amended complaint, Defendants may move for dismissal under 10 Rule 12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 12(b) 11 motion. Albino v. Baca,

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

, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative 13 remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a 14 defendant as an unenumerated Rule 12(b) motion). Otherwise, if a failure to exhaust is not clear 15 on the face of the amended complaint, Defendants must produce evidence proving failure to 16 exhaust in a motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in 17 the light most favorable to Plaintiff shows a failure to exhaust, Defendants are entitled to summary 18 judgment under Rule 56. Id. But if material facts are disputed, summary judgment should be 19 denied and the district judge, rather than a jury, should determine the facts in a preliminary 20 proceeding. Id. at 1168. 21 If Defendants are of the opinion that this case cannot be resolved by summary judgment, 22 Defendants shall so inform the Court prior to the date the summary judgment motion is due. All 23 papers filed with the Court shall be promptly served on Plaintiff. 24 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 25 and served on Defendants no later than twenty-eight (28) days after the date on which 26 Defendants’ motion is filed. 27 1 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 2 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 3 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 4 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 5 any fact that would affect the result of your case, the party who asked for summary judgment is 6 entitled to judgment as a matter of law, which will end your case. When a party you are suing 7 makes a motion for summary judgment that is supported properly by declarations (or other sworn 8 testimony), you cannot simply rely on what your amended complaint says. Instead, you must set 9 out specific facts in declarations, depositions, answers to interrogatories, or authenticated 10 documents, as provided in Rule 56(c), that contradict the facts shown in the defendant’s 11 declarations and documents and show that there is a genuine issue of material fact for trial. If you 12 do not submit your own evidence in opposition, summary judgment, if appropriate, may be 13 entered against you. If summary judgment is granted, your case will be dismissed and there will 14 be no trial. Rand, 154 F.3d at 962-63. 15 Plaintiff also is advised that—in the rare event that Defendants argue that the failure to 16 exhaust is clear on the face of the amended complaint—a motion to dismiss for failure to exhaust 17 available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit 18 without prejudice. To avoid dismissal, you have the right to present any evidence to show that 19 you did exhaust your available administrative remedies before coming to federal court. Such 20 evidence may include: (1) declarations, which are statements signed under penalty of perjury by 21 you or others who have personal knowledge of relevant matters; (2) authenticated documents— 22 documents accompanied by a declaration showing where they came from and why they are 23 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 24 in your amended complaint insofar as they were made under penalty of perjury and they show that 25 you have personal knowledge of the matters state therein. As mentioned above, in considering a 26 motion to dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary 27 judgment motion under Rule 56, the district judge may hold a preliminary proceeding and decide 1 (The notices above do not excuse Defendants’ obligation to serve similar notices again 2 || concurrently with motions to dismiss for failure to exhaust available administrative remedies and 3 motions for summary judgment. Woods,

.) 4 d. Defendants shall file a reply brief no later than fourteen (14) days after the 5 date Plaintiffs opposition is filed. 6 e. The motion shall be deemed submitted as of the date the reply brief is due. 7 No hearing will be held on the motion unless the Court so orders at a later date. 8 5. Discovery may be taken in this action in accordance with the Federal Rules of Civil 9 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to 10 || depose Plaintiff and any other necessary witnesses confined in prison. 11 6. All communications by Plaintiff with the Court must be served on Defendants or 12 || Defendants’ counsel, once counsel has been designated, by mailing a true copy of the document to 5 13 them. 14 7. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 3 15 informed of any change of address and must comply with the Court’s orders in a timely fashion. 16 || Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 3 17 while an action is pending must promptly file a notice of change of address specifying the new 18 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 19 directed to the pro se party by the Court has been returned to the Court as not deliverable, and 20 (2) the Court fails to receive within sixty days of this return a written communication from the pro 21 se party indicating a current address. See L.R. 3-11(b). 22 8. Upon a showing of good cause, requests for a reasonable extension of time will be 23 granted provided they are filed on or before the deadline they seek to extend. 24 IT IS SO ORDERED. 25 Dated: January 22, 2021 26 Lapent Hgecteflccs,—_ GE YVONNE GONZALEZ ROGERS 27 United States District Judge 28