1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 REGINALD WARE, Case No. 21-cv-07931-SVK

8 Plaintiff, ORDER OF SERVICE v. 9

10 J. LOPEZ, et al., Defendants. 11

12 Plaintiff, a California state prisoner proceeding pro se, has filed a civil rights complaint 13 under

Dkt. No. 1 (“Complaint”). Plaintiff is granted leave to proceed in forma 14 pauperis in a separate order. 15 For the reasons that follow, the Court orders service on defendants. 16 DISCUSSION 17 A. Legal Standard 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). The court must identify any cognizable claims and dismiss any claims which are 21 frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief 22 from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se pleadings must 23 be liberally construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). 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 deprivation was committed by a person acting under the color of state law. See West v. 27 1 Atkins,

(1988). 2 B. Legal Claims 3 Plaintiff claims that defendants, officials at the California Training Facility in Soledad, 4 California, violated his rights under the Eighth and Fourteenth Amendment rights. Specifically, 5 he alleges that in June 2020, Lieutenant J. Lopez, Sergeant J. Peffley, Sergeant H. Vera, 6 Commander A. Villalobos, and various unnamed “Doe” defendants, used excessive force while 7 extracting him from his cell at 3:00 a.m., then kept him with 200 other inmates in the dining hall 8 without clothes, in tight wrist restraints, and without precautions against the spread of COVID-19, 9 and singled out him and other Black inmates for such treatment. He alleges that Warden Koenig 10 directed the operation for the foregoing mistreatment of Black inmates. 11 Liberally construed, plaintiff states cognizable claims against defendants for violation of 12 his Eighth and Fourteenth Amendment rights. 13 CONCLUSION 14 1. Defendants Warden Koenig, Lieutenant J. Lopez, Sergeant J. Peffley, Sergeant H. Vera, 15 Commander A. Villalobos shall be served at the California Training Facility. 16 Service shall proceed under the California Department of Corrections and Rehabilitation’s 17 (CDCR) e-service program for civil rights cases from prisoners in CDCR custody. In accordance 18 with the program, the clerk is directed to serve on CDCR via email the following documents: the 19 Complaint, this Order, a CDCR Report of E-Service Waiver form, and a summons. The clerk also 20 shall serve a copy of this order on the plaintiff. 21 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 22 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 23 listed in this order will be waiving service of process without the need for service by the United 24 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 25 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 26 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of 27 service of process for the defendant(s) who are waiving service. 1 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 2 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies 3 of this order, the summons, and the operative complaint for service upon each defendant who has 4 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 5 Service Waiver. 6 2. The Defendants shall file an answer in accordance with the Federal Rules of Civil 7 Procedure. 8 3. No later than eighty-four (84) days from the date this order is filed, defendants 9 shall file one comprehensive motion for summary judgment or other dispositive motion with 10 respect to the cognizable claims in the complaint. At that time, defendants shall also submit the 11 magistrate judge jurisdiction consent form. Any motion for summary judgment shall be supported 12 by adequate factual documentation and shall conform in all respects to Rule 56 of the Federal 13 Rules of Civil Procedure. A motion for summary judgment also must be accompanied by a Rand 14 notice so that plaintiff will have fair, timely and adequate notice of what is required of him in 15 order to oppose the motion. Woods v. Carey,

(9th Cir. 2012) (notice 16 requirement set out in Rand v. Rowland,

(9th Cir. 1998), must be served 17 concurrently with motion for summary judgment). Defendants are advised that summary 18 judgment cannot be granted, nor qualified immunity found, if material facts are in dispute. 19 If defendants are of the opinion that this case cannot be resolved by summary judgment, 20 they shall so inform the court prior to the date the summary judgment motion is due. 21 4. Plaintiff’s opposition to the dispositive motion shall be filed with the court and 22 served on defendants no later than twenty-eight (28) days from the date defendants’ motion is 23 filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex 24 Corp. v. Catrett,

(1986) (holding party opposing summary judgment must come 25 forward with evidence showing triable issues of material fact on every essential element of his 26 claim). 27 5. Defendants shall file a reply brief no later than fourteen (14) days after plaintiff’s 1 6. All communications by plaintiff with the court must be served on defendants, or 2 || defendants’ counsel, by mailing a true copy of the document to defendants or defendants’ counsel. 3 7. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 4 No further court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 5 parties may conduct discovery. 6 Plaintiff is reminded that state prisoners inmates may review all non-confidential material 7 in their medical and central files, pursuant to In re Olson,

(Cal. Ct. App. 8 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 9 || Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. Requests to 10 || review these files or for copies of materials in them must be made directly to prison officials, not 11 |) to the court. 12 8. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the court 13 informed of any change of address by filing a separate paper with the clerk headed “Notice of 14 || Change of Address.” He also must comply with the court’s orders in a timely fashion. Failure to 2 15 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 16 || Civil Procedure 41(b). 2 17 IT IS SO ORDERED. 18 Suusm aKa DATED: October 13, 2021 vi 19 SUSAN VAN KEULEN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28