1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 JEREMY DANIELS, No. C 20-8693 WHA (PR) 10 Plaintiff, ORDER OF SERVICE; ON PENDING MOTIONS 11 v. 12 GERALD COYLE; JOHN DOES 1-5, 13 Defendants. (Dkt. Nos. 4, 5, 10, 11) / 14 15 INTRODUCTION 16 Plaintiff is a California prisoner who filed this pro se complaint under

17 against Gerald Coyle and four other unnamed police officers of the San Jose Police Department 18 for using excessive force during his arrest. For the reasons discussed below, the complaint is 19 ordered served upon Coyle. Leave to proceed in forma pauperis is granted in a separate order. 20 ANALYSIS 21 A. STANDARD OF REVIEW 22 Federal courts must engage in a preliminary screening of cases in which a plaintiff seeks 23 to proceed in forma pauperis (“IFP”).

(e). In its review the court must dismiss 24 any claims which are frivolous, malicious, fail to state a claim upon which relief may be 25 granted, or seek monetary relief from a defendant who is immune from such relief.

at § 26 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 27 Dep't,

(9th Cir. 1990). 28 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 1 claim showing that the pleader is entitled to relief." “Specific facts are not necessary; the 2 statement need only ‘“give the defendant fair notice of what the . . . . claim is and the grounds 3 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 7 do. . . . Factual allegations must be enough to raise a right to relief above the speculative 8 level." Bell Atlantic Corp. v. Twombly,

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

10 at 1974. 11 To state a claim under

, a plaintiff must allege two essential elements: 12 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) 13 that the alleged deprivation was committed by a person acting under the color of state law. 14 West v. Atkins,

(1988). 15 B. LEGAL CLAIMS 16 Plaintiff alleges that Coyle twisted his wrist and punched him in the face multiple times 17 while arresting him, including after he was handcuffed and complying with orders. He alleges 18 that the unnamed officers stood by and failed to intervene. When liberally construed, these 19 allegations state a cognizable claim for relief under Section 1983 for the violation of his 20 constitutional rights and under state tort law. 21 Plaintiff requests appointment of counsel. In a civil case, a plaintiff does not have a 22 right to counsel, and the court does not have the power to make coercive or mandatory 23 appointments of counsel. The case may be referred to the Bar Association to try to find a 24 lawyer who is willing to represent him on a pro bono basis (i.e. for free), but that is not 25 necessary here because plaintiff has been able to represent himself ably. If at a future point 26 plaintiff needs a lawyer in order to manage this case, the court will refer him; plaintiff does not 27 need to, and should not, ask again. Plaintiff has filed a motion for copies, but it is not clear 28 1 what copies he needs. If he needs copies from the court, he may submit a request to the clerk 2 identifying the documents he wants copied; the clerk will then send him instructions for 3 payment and requesting of copies. He must go through jail procedures to get copies from jail 4 officials. 5 CONCLUSION 6 For the reasons set out above, 7 1. The motions for appointment of counsel and for copies are DENIED without 8 prejudice, as explained above. 9 2. The clerk shall issue summons and the United States Marshal shall serve, without 10 prepayment of fees, a copy of the complaint with all attachments thereto, and a copy of this 11 order upon defendant Officer Gerald Coyle at the San Jose Police Department. A courtesy 12 copy of the complaint with attachments and this order shall also be mailed to the San Jose City 13 Attorney’s Office. 14 3. Defendant shall file an answer in accordance with the Federal Rules of Civil 15 Procedure. 16 4. In order to expedite the resolution of this case: 17 a. No later than 91 days from the date this order is filed, defendants shall file a 18 motion for summary judgment or other dispositive motion. If defendants are of the opinion that 19 this case cannot be resolved by summary judgment, they shall so inform the court prior to the 20 date the summary judgment motion is due. All papers filed with the court shall be promptly 21 served on the plaintiff. 22 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 23 court and served upon defendants no later than 28 days from the date of service of the motion. 24 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to 25 him pursuant to Rand v. Rowland,

(9th Cir. 1998) (en banc), and 26 Klingele v. Eikenberry,

(9th Cir. 1988). 27 c. Defendants shall file a reply brief no later than 14 days after the date of 28 1 service of the opposition. 2 d. The motion shall be deemed submitted as of the date the reply brief is due. 3 No hearing will be held on the motion unless the court so orders at a later date. 4 e. Along with his motion, defendants shall file proof that they served plaintiff 5 the Rand warning at the same time they served him with their motion. Failure to do so will 6 result in the summary dismissal of their motion. 7 5. All communications by the plaintiff with the court must be served on defendants, or 8 defendants’ counsel once counsel has been designated, by mailing a true copy of the document 9 to defendants or their counsel. 10 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 11 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is 12 required before the parties may conduct discovery. 13 7. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 14 informed of any change of address and must comply with the court's orders in a timely fashion. 15 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 16 Federal Rule of Civil Procedure 41(b). 17 IT IS SO ORDERED. 18 19 Dated: March 1 5 , 2021. WILLIAM ALSUP 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material 7 fact--that is, if there is no real dispute about any fact that would affect the result of your case, 8 the party who asked for summary judgment is entitled to judgment as a matter of law, which 9 will end your case. When a party you are suing makes a motion for summary judgment that is 10 properly supported by declarations (or other sworn testimony), you cannot simply rely on what 11 your complaint says. Instead, you must set out specific facts in declarations, depositions, 12 answers to interrogatories, or authenticated documents, as provided in [current Rule 56(c)], that 13 contradict the facts shown in the defendant's declarations and documents and show that there is 14 a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, 15 summary judgment, if appropriate, may be entered against you. If summary judgment is 16 granted, your case will be dismissed and there will be no trial. 17 18 19 20 21 22 23 24 25 26 27 28