1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GREGORY J. DIXON, Case No. 22-cv-02322-JSW

8 Plaintiff, ORDER OF SERVICE; 9 v. DENYING MOTION FOR 10 RALPH DIAZ, et al., APPOINTMENT OF COUNSEL 11 Defendants.

12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42

against prison officials for violating his constitutional rights at San Quentin State 15 Prison. Leave to proceed in forma pauperis is granted in a separate order. For the reasons 16 discussed below, the complaint is ordered served on Defendants. 17 ANALYSIS 18 A. STANDARD OF REVIEW 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 21 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 22 which 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.

at 1915A(b)(1),(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 25 Cir. 1990). 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.” “Specific facts are not necessary; the 1 which it rests.”’” Erickson v. Pardus,

(2007) (citations omitted). Although 2 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s 3 obligation to provide the ‘grounds of his ‘entitle[ment] to relief’ requires more than labels and 4 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 5 Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 6 Atlantic Corp. v. Twombly,

(2007) (citations omitted). A complaint 7 must proffer “enough facts to state a claim for relief that is plausible on its face.”

. 8 To state a claim under

, a plaintiff must allege two essential elements: (1) 9 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 10 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 11

(1988). 12 B. LEGAL CLAIMS 13 Plaintiff alleges that Defendants knowingly transferred 122 prisoners from the California 14 Institute for Men (CIM), where there was a COVID-19 outbreak, to San Quentin State Prison 15 (SQSP), where there were no COVID-19 cases, on May 30, 2020. He alleges that Defendants 16 failed to test the transferring prisoners at an appropriate time, and failed to quarantine them upon 17 arrival at SQSP, causing a COVID-19 outbreak at SQSP. Plaintiff tested positive for the virus on 18 July 6, 2020. See Dkt. No. 1-1 at 21. 19 Plaintiff names the following Defendants: 20 1. Ralph Diaz, CDCR Secretary 21 2. Kathleen Allison, CDCR Director 22 3. Ron Davis, SQSP Warden 23 4. Ronald Broomfield, SQSP Warden 24 5. A. Pachynski, SQSP Chief Medical Officer 25 6. J. Arnold, SQSP Captain 26 7. Dean Borders, CIM Warden 27 8. Dr. Joseph Bink, California Correctional Healthcare Services Director 1 indifference to his safety, in violation of the Eighth Amendment, against all Defendants. 2 Plaintiff also claims that the conduct he describes violates Article 1, section 17 of the 3 California Constitution. State and federal courts have recognized that this provision does not 4 provide a private right of action for damages. See, e.g., Quezada v. California, No. 5 120CV00959DADSAB,

, at *5 (E.D. Cal. June 14, 2021) (citing Giraldo v. 6 Dep’t of Corr. & Rehab.,

(2008)). Plaintiff’s claim under the 7 California Constitution is therefore DISMISSED. 8 CONCLUSION For the reasons set out above, 9 1. Plaintiff’s claim under the California Constitution is DISMISSED. His Eight 10 Amendment claim is, when liberally construed, cognizable. 11 2. The Court ORDERS that service on the following Defendants shall proceed under 12 the California Department of Corrections and Rehabilitation (“CDCR”) e-service program for civil 13 rights cases from prisoners in the CDCR’s custody: 14 1. Ralph Diaz, CDCR Secretary 15 2. Kathleen Allison, CDCR Director 16 3. Ron Davis, SQSP Warden 17 4. Ronald Broomfield, SQSP Warden 18 5. A. Pachynski, SQSP Chief Medical Officer 19 6. J. Arnold, SQSP Captain 20 7. Dean Borders, CIM Warden 21 8. Dr. Joseph Bink, California Correctional Healthcare Services Director 22 In accordance with the program, the Clerk is directed to serve on the CDCR via email the 23 following documents: the operative complaint (Dkt. No. 1), this Order of Service, a CDCR Report 24 of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order on the 25 Plaintiff. 26 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 27 provide the court a completed CDCR Report of E-Service Waiver advising the court which 1 defendant(s) listed in this order will be waiving service of process without the need for service by 2 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 3 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 4 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 5 a waiver of service of process for the defendant(s) who are waiving service. 6 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 7 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 8 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 9 of this order, the summons and the operative complaint for service upon each defendant who has 10 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 11 Service Waiver. 12 3. All Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 13 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 14 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on 15 behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the 16 cost of such service unless good cause can be shown for their failure to sign and return the waiver 17 form. 18 4. This Court will issue a scheduling order for summary judgment or other dispositive 19 motion briefing after resolution of the common issues in the 22-mc-80066-WHO matter. See Dkt. 20 No. 5. 21 5. All communications by Plaintiff with the Court must be served on Defendants’ 22 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard 23 any document which a party files but fails to send a copy of to his opponent. Until Defendants’ 24 counsel has been designated, Plaintiff may mail a true copy of the document directly to 25 Defendants, but once Defendants are represented by counsel, all documents must be mailed to 26 counsel rather than directly to Defendants. 27 6. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 1 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 2 pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of 3 address in every pending case every time he is moved to a new facility. 4 7. Any motion for an extension of time must be filed no later than the deadline sought 5 to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 6 || he must include the case name and case number for this case on any document he submits to the 7 Court for consideration in this case. 8 8. Plaintiff's motion for appointment of counsel (Dkt. No. 3) is DENIED. There is no 9 || right to counsel in a civil case, and Plaintiff is able to adequately litigate his claims on his own. 10 This Order terminates Docket No. 3. 11 IT IS SO ORDERED. Dated: A 4, 2022 12 ated: August 4, 20 1) fo] iy \ | ii LAG : IEFFREY S. WHITE I5 f PaitiSe istrict Judge 2 if HM ‘ = 17

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