1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MATTHEW K. QUALE, 11 Case No. 21-00708 EJD (PR) Plaintiff, 12 ORDER DISMISSING NON- COGNIZABLE CLAIMS; OF 13 v. SERVICE; DIRECTING DEFENDANTS TO FILE 14 DISPOSITIVE MOTION OR KATHLEEN ALLISON, et al., NOTICE REGARDING SUCH 15 MOTION; INSTRUCTIONS TO Defendants. CLERK 16

17 18 Plaintiff, a state prisoner at San Quentin State Prison (“SQSP”), filed the instant pro 19 se civil rights action pursuant to

. Dkt. No. 1. The action was reassigned 20 from Magistrate Judge Thomas S. Hixson to the undersigned because not all parties had 21 consented to the jurisdiction of a United States Magistrate Judge pursuant to

636(c). Dkt. No. 10. Prior to the reassignment, Magistrate Judge Hixson issued his report 23 and recommendation on July 6, 2021. Dkt. No. 9. When the deadline to file an objection 24 to the report and recommendation expired with no objections being filed, the Court 25 proceeded to review the record on its face and found no clear error. Dkt. No. 11. The 26 Court therefore accepted Magistrate Judge Hixson’s report and recommendation, which 27 then became the Order of this Court.

. 1 The Court identified cognizable claims, dismissed non-cognizable claims with 2 prejudice, and dismissed remaining claims with leave to amend.

. Plaintiff was 3 directed to file an amended complaint to correct the deficiency in his inadequate dental 4 care claim.

. Plaintiff was advised that if he failed to respond in the time provided, 5 the matter would proceed solely on the cognizable claims and all other claims would be 6 dismissed for failure to state a claim.

. The deadline for responding, September 14, 7 2021, has passed, and Plaintiff has not filed a response. Accordingly, this action shall 8 proceed on the cognizable claims identified in the last court order, and all other claims 9 shall be dismissed for failure to state a claim. 10 11 CONCLUSION 12 For the foregoing reasons, the Court orders as follows: 13 1. This action shall proceed on the Eighth Amendment claim for deliberate 14 indifference to inmate safety and Plaintiff’s medical needs when inmates were transferred 15 from California Institution for Men – Chino (“CIM”) to SQSP in May 2020, and for failure 16 to reduce the prison population by 50%. Dkt. No. 9 at 6; Dkt. No. 11 at 3. All other 17 claims are dismissed with prejudice for failure to state a claim. 18 2. The following defendants at SQSP, CIM, and CDCR shall be served: 19 a. Kathleen Allison, Director of the CDCR 20 b. Ralph Diaz, Secretary of the CDCR 21 c. Ron Davis, Associate Director of Reception Centers for the CDCR 22 d. Ron Broomfield, Acting Warden of SQSP 23 e. Dr. A. Pachynski, Chief Medical Officer at SQSP 24 f. Dr. L. Escobell, Chief Medical Officer at CIM 25 g. R. Steven Tharratt, Director of Medical Services for the CDCR 26 h. Clarence Cryer, Healthcare Chief Executive Director at SQSP 1 j. Dr. Joseph Bick, Director of CCHCS for the CDCR 2 Defendant Kelso shall be separately served as directed under paragraph (3) below. 3 See infra at 4. All other defendants shall be terminated from this action, including the 4 following: J. Arnold, M. Bloise, B. Haub, B. Dutton, K. France, T. R. Teixeira, and Gavin 5 Newsom. 6 Service on the listed defendant(s) shall proceed under the California Department of 7 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 8 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 9 on CDCR via email the following documents: the operative complaint, and any 10 attachments thereto, Dkt. No. 6 (amended complaint), a copy of the court’s “Order 11 Accepting Report and Recommendation,” Dkt. No. 11, this order of service, a CDCR 12 Report of E-Service Waiver form and a summons. The clerk also shall serve a copy of this 13 order on the plaintiff. 14 No later than 40 days after service of this order via email on CDCR, CDCR shall 15 provide the court a completed CDCR Report of E-Service Waiver advising the court which 16 defendant(s) listed in this order will be waiving service of process without the need for 17 service by the United States Marshal Service (USMS) and which defendant(s) decline to 18 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 19 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 20 days, shall file with the court a waiver of service of process for the defendant(s) who are 21 waiving service. 22 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 23 each defendant who has not waived service according to the CDCR Report of E-Service 24 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 25 forms and copies of this order, the summons and the operative complaint for service upon 26 each defendant who has not waived service. The clerk also shall provide to the USMS a 1 3. Defendant Clark Kelso, Federal Receiver shall be served through the 2 Litigation Support Section of the California Correctional Health Care Services. The clerk 3 is directed to serve on Defendant Kelso via email at [email protected], 4 the following documents: the operative complaint, and any attachments thereto, Dkt. No. 6 5 (amended complaint), a copy of the court’s “Order Accepting Report and 6 Recommendation,” Dkt. No. 11, this order of service, and a summons. 7 4. No later than ninety-one (91) days from the date this order is filed, 8 Defendants shall file a motion for summary judgment or other dispositive motion with 9 respect to the claims in the complaint found to be cognizable above. 10 a. Any motion for summary judgment shall be supported by adequate 11 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 12 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 13 qualified immunity found, if material facts are in dispute. If any Defendant is of the 14 opinion that this case cannot be resolved by summary judgment, he shall so inform the 15 Court prior to the date the summary judgment motion is due. 16 b. In the event Defendants file a motion for summary judgment, the 17 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 18 warnings under Rand v. Rowland,

(9th Cir. 1998) (en banc). See 19 Woods v. Carey,

(9th Cir. 2012). 20 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 21 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 22 motion is filed. 23 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 24 Celotex Corp. v. Catrett,

(1986) (holding party opposing summary judgment 25 must come forward with evidence showing triable issues of material fact on every essential 26 element of his claim). Plaintiff is cautioned that failure to file an opposition to 1 || the granting of the motion, and granting of judgment against Plaintiff without a trial. See 2 || Ghazaliv. Moran,

(9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 3 || F.3d 651,653 (9th Cir. 1994). 4 6. Defendants shall file a reply brief no later than fourteen (14) days after 5 || Plaintiffs opposition is filed. 6 7. The motion shall be deemed submitted as of the date the reply brief □□ due. 7 No hearing will be held on the motion unless the Court so orders at a later date. 8 8. All communications by the Plaintiff with the Court must be served on 9 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 10 || copy of the document to Defendants or Defendants’ counsel. ll 9. Discovery may be taken in accordance with the Federal Rules of Civil 12 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 13 |} Rule 16-1 is required before the parties may conduct discovery. 14 10. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 2 15 || court informed of any change of address and must comply with the court’s orders ina 16 || timely fashion. Failure to do so may result in the dismissal of this action for failure to i 17 prosecute pursuant to Federal Rule of Civil Procedure 41(b). Z 18 11. Extensions of time must be filed no later than the deadline sought to be 19 || extended and must be accompanied by a showing of good cause. 20 IT IS SO ORDERED. 21 || Dated: _ 10/18/2021 aD. EDWARD J. DAVILA United States District Judge 23 24 25 Order Dismissing Non-Cog. Claims; of Sve PRO-SE\EJD\CR.21\00708Quale_sve 26 27