1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES H. FLOURNOY, No. C 20-8234 WHA (PR) 8 Plaintiff, ORDER OF SERVICE 9 v. 10 CITY OF PINOLE POLICE 11 DEPARTMENT; OFFICER SHAWN DELGADO; SERGEANT ROGERS; 12 CHIEF OF CITY OF PINOLE POLICE DEPARTMENT; OFFICER 13 DEAN; OLISON; TIARA DAVIS, 14 Defendants. / 15 16 INTRODUCTION 17 Plaintiff, an inmate in county jail, filed this civil rights case under

18 against the City of Pinole and several employees at its Police Department for their actions 19 during the course of his arrest. He also names as defendants two private citizens, Tiara Davis 20 and Jovan Olison. He is granted leave to proceed in forma pauperis in a separate order. For the 21 reasons discussed below, the complaint is ordered served on certain defendants to respond to 22 those claims that are, when liberally construed, cognizable. 23 ANALYSIS 24 A. STANDARD OF REVIEW 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 28 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 1 monetary relief from a defendant who is immune from such relief.

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

, 699 3 (9th Cir. 1990). 4 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 5 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 6 statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds 7 upon which it rests."'" Erickson v. Pardus,

(2007) (citations omitted). 8 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 9 plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than 10 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 11 do. . . . Factual allegations must be enough to raise a right to relief above the speculative 12 level." Bell Atlantic Corp. v. Twombly,

(2007) (citations omitted). A 13 complaint must proffer "enough facts to state a claim for relief that is plausible on its face."

14 at 1974. 15 To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements: 16 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) 17 that the alleged deprivation was committed by a person acting under the color of state law. 18 West v. Atkins,

(1988). 19 B. LEGAL CLAIMS 20 Plaintiff claims that defendants the City of Pinole, the Chief of the Pinole Police 21 Department, Officer Sean Delgado, Officer Dean, and Sergeant Rogers, were responsible for the 22 officers’ use of excessive force during his arrest and deliberate indifference to his medical 23 condition. These claims are, when liberally construed, cognizable under Section 1983. 24 Plaintiff’s claims against Defendants Jovan Olison and Tara Reid are not cognizable 25 under Section 1983 because they are private citizens, not government officials, and therefore 26 they did not act under “color of law.” See West v. Atkins,

(1988). 27 28 1 CONCLUSION 2 For the reasons set out above, 3 1. The claims against Defendants Tiara Davis and Jovan Olison are DISMISSED for 4 failure to state a cognizable claim for relief under Section 1983. Plaintiff may pursue his claims 5 against them under state law, if he has any, in state court. 6 2. The clerk shall issue summons and the United States Marshal shall serve, without 7 prepayment of fees, a copy of the complaint with all attachments thereto, and a copy of this order 8 upon defendants City of Pinole, the Chief of the Pinole Police Department, Officer Sean 9 Delgado, Officer Dean, and Sergeant Rogers at the City of Pinole Police Department. A 10 courtesy copy of the complaint with attachments and this order shall also be mailed to the City 11 Attorney of the City of Pinole. 12 3. Defendants shall file an answer in accordance with the Federal Rules of Civil 13 Procedure. 14 4. In order to expedite the resolution of this case: 15 a. No later than 91 days from the date this order is filed, defendants shall file a 16 motion for summary judgment or other dispositive motion. If defendants are of the opinion that 17 this case cannot be resolved by summary judgment, they shall so inform the court prior to the 18 date the summary judgment motion is due. All papers filed with the court shall be promptly 19 served on the plaintiff. 20 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 21 court and served upon defendants no later than 28 days from the date of service of the motion. 22 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to 23 him pursuant to Rand v. Rowland,

(9th Cir. 1998) (en banc), and Klingele 24 v. Eikenberry,

(9th Cir. 1988). 25 c. Defendants shall file a reply brief no later than 14 days after the date of 26 service of the opposition. 27 d. The motion shall be deemed submitted as of the date the reply brief is due. No 28 1 hearing will be held on the motion unless the court so orders at a later date. 2 e. Along with his motion, defendants shall file proof that they served plaintiff the 3 Rand warning at the same time they served him with their motion. Failure to do so will result in 4 the summary dismissal of their motion. 5 5. All communications by the plaintiff with the court must be served on defendants, or 6 defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 7 defendants or their counsel. 8 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 9 further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required 10 before the parties may conduct discovery. 11 7. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 12 informed of any change of address and must comply with the court's orders in a timely fashion. 13 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 14 Federal Rule of Civil Procedure 41(b). 15 IT IS SO ORDERED. 16 Dated: April 2 , 2021. 17 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 18 19 20 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 dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 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, the 8 party who asked for summary judgment is entitled to judgment as a matter of law, which will 9 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, answers 12 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 a 14 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 granted, 16 your case will be dismissed and there will be no trial. 17 18 19 20 21 22 23 24 25 26 27 28