FILED 1 Jun 14 2022 2 Mark B. Busby CLERK, U.S. DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 3 SAN FRANCISCO 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT BOBBIE BATS, Case No. 22-cv-03245-TSH 8 Plaintiff, 9 V ORDER OF SERVICE 10 L. MARTINEZ, et al., 11 Defendants. 12

13 Plaintiff, an inmate at Correctional Training Facility (“CTF”), in Soledad, California, has

14 || filed a pro se action pursuant to

against CTF warden Martinez and CTF captain

8 15 || Mak. His complaint is now before the Court for review under 28 U.S.C. § 1915A. Plaintiff has : 16 || been granted leave to proceed in forma pauperis in a separate order

17 DISCUSSION

18 A, Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 || redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 || that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 || monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 || (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi,

|} 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 || claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 28 || necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the

1 2 grounds upon which it rests.’” Erickson v. Pardus,

(2007) (citations omitted). 3 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 4 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal,

, 677–78 (2009). 5 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 6 cause of action, or naked assertions devoid of further factual enhancement does not suffice.

7 To state a claim under

, a plaintiff must allege two essential elements: 8 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 9 the alleged violation was committed by a person acting under the color of state law. See West v. 10 Atkins,

(1988). 11 B. Complaint 12 The complaint makes the following allegations. Plaintiff contracted COVID due to the 13 following actions and inactions by defendants. Defendants failed to follow and enforce the 14 California Department of Corrections and Rehabilitation (“CDCR”)’s mandated COVID-related 15 safety protocols by (1) not cleaning and sanitizing Plaintiff’s housing unit during the 3rd watch 16 program hours; (2) not placing Plaintiff in a single cell in violation of CDCR social distancing 17 requirements; (3) not following and enforcing rules that CDCR staff wear proper PPE when 18 coming into contact with the inmate population, i.e. allowing CDCR staff to remove their face 19 masks during cell searches and not requiring that disposable gloves be changed between each cell 20 searched; and (4) allowing staff who worked with COVID-positive inmates to also work on yards 21 where there were no inmates with COVID. 22 Liberally construed, the complaint’s allegations state a cognizable claim against 23 Defendants for deliberate indifference to Plaintiff’s safety and serious medical needs. Deliberate 24 indifference to a prisoner’s serious medical needs violates the Eighth Amendment’s proscription 25 against cruel and unusual punishment. See Estelle v. Gamble,

(1976). A prison 26 official is deliberately indifferent if he knows of and disregards an excessive risk to inmate health 27 or safety by failing to take reasonable steps to abate it. Farmer v. Brennan,

, 832 1 proximately caused the deprivation of rights of which plaintiff complains, see Harris v. City of 2 Roseburg,

(9th Cir. 1981); (2) the supervisor defendant failed to properly 3 train or supervise personnel resulting in the alleged deprivation, Ybarra v. Reno Thunderbird 4 Mobile Home Village,

(9th Cir. 1984); (3) the alleged deprivation resulted from 5 custom or policy for which the supervisor defendant was responsible, see id.; or (4) the supervisor 6 defendant knew of the alleged misconduct and failed to act to prevent future misconduct, Taylor v. 7 List,

(9th Cir. 1989). 8 CONCLUSION 9 For the foregoing reasons, the Court orders as follows. 10 1. The following defendant(s) shall be served: Correctional Training Facility warden 11 L. Martinez and captain T. Mak. 12 Service on the listed defendant(s) shall proceed under the California Department of 13 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners 14 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the 15 CDCR via email the following documents: the operative complaint, this order of service, a CDCR 16 Report of E-Service Waiver form, a summons, and a consent or declination to magistrate judge 17 jurisdiction form. The Clerk also shall serve a copy of this order on the Plaintiff. 18 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 19 provide the court a completed CDCR Report of E-Service Waiver advising the court which 20 defendant(s) listed in this order will be waiving service of process without the need for service by 21 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 22 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 23 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 24 a waiver of service of process for the defendant(s) who are waiving service. 25 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 26 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 27 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 1 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 2 Service Waiver. 3 2. In order to expedite the resolution of this case, the Court orders as follows: 4 a. No later than 91 days from the date this order is filed, Defendants must file 5 and serve a motion for summary judgment or other dispositive motion. If Defendants are of the 6 opinion that this case cannot be resolved by summary judgment, Defendants must so inform the 7 Court prior to the date the motion is due. A motion for summary judgment also must be 8 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what 9 is required of him in order to oppose the motion. Woods v. Carey,

(9th Cir. 10 2012) (notice requirement set out in Rand v. Rowland,

(9th Cir. 1998), must be 11 served concurrently with motion for summary judgment).1 12 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 13 must be filed with the Court and served upon Defendants no later than 28 days from the date the 14 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 15 provided later in this order as he prepares his opposition to any motion for summary judgment. 16 c. Defendants shall file a reply brief no later than 14 days after the date the 17 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 18 hearing will be held on the motion. 19 3. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 20 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 21 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 22 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 23 any fact that would affect the result of your case, the party who asked for summary judgment is 24 entitled to judgment as a matter of law, which will end your case. When a party you are suing 25 1 If Defendants assert that Plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), Defendants must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca,

(9th Cir. 2014) 27 (en banc) (overruling Wyatt v. Terhune,

(9th Cir. 2003), which held that 1 makes a motion for summary judgment that is properly supported by declarations (or other sworn 2 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 3 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 4 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and 5 documents and show that there is a genuine issue of material fact for trial. If you do not submit 6 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 7 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 8 Rowland,

, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 9 not excuse Defendants’ obligation to serve said notice again concurrently with a motion for 10 summary judgment. Woods,

). 11 4. All communications by Plaintiff with the Court must be served on Defendants’ 12 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard 13 any document which a party files but fails to send a copy of to his opponent. Until Defendants’ 14 counsel has been designated, Plaintiff may mail a true copy of the document directly to 15 Defendants, but once Defendants are represented by counsel, all documents must be mailed to 16 counsel rather than directly to Defendants. 17 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 18 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 19 before the parties may conduct discovery. 20 6. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 21 Court informed of any change of address and must comply with the Court’s orders in a timely 22 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 23 to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 24 pending case every time he is moved to a new facility. 25 // 26 // 27 // ] 7. Any motion for an extension of time must be filed no later than the deadline sought 2 || to be extended and must be accompanied by a showing of good cause. Plaintiff cautioned that 3 he must include the case name and case number for this case on any document he submits to the 4 || Court for consideration in this case. 5 IT IS SO ORDERED. 6 7 Dated: June 14, 2022 Te g AN - □□ THOMAS S. HIXSON 9 United States Magistrate Judge 10 11 L

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