1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JEFFREY WALKER, 11 Case No. 22-cv-00904 EJD (PR) Plaintiff, 12 ORDER ADDRESSING PLAINTIFF’S NOTICE OF 13 ELECTION; OF PARTIAL v. DISMISSAL AND OF SERVICE; 14 DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR 15 NOTICE REGARDING SUCH OFFICER GUZMAN, et al., MOTION; INSTRUCTIONS TO 16 CLERK Defendants. 17 (Docket No. 19)

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19 Plaintiff, a civil detainee, filed the instant pro se civil rights action pursuant to 42

against officers at the San Francisco County Jail #2 (“Jail”), where he is 21 currently confined. Dkt. No. 1. The Court found the amended complaint, Dkt. No. 8, 22 stated cognizable claims but violated Federal Rules of Civil Procedure 18(a) and 20(a). 23 Dkt. No. 18. Plaintiff was directed to file notice indicating which set of claims he wishes 24 to pursue in this action, i.e., either those under Claim One or Claim Two.

. 25 Plaintiff filed notice that he wishes to proceed only with the cognizable claims 26 under Claim Two and dismiss all other claims from this action. Dkt. No. 19. 27 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 10 To state a claim under

, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins,

(1988). 14 B. Plaintiff’s Claims 15 In its initial review, the Court found the following claims cognizable under Claim 16 Two: (1) Fourteenth Amendment deliberate indifference claim against Defendants 17 Guzman, Tracy, Ng, Gomez, and Taylor; (2) retaliation claim against Defendant Guzman 18 for not letting him out of his cell to make calls; and (3) retaliation and unreasonable search 19 and seizure claims against Defendants Malaspeina, Huerrera, Ng, and Gomez for the cell 20 search and confiscation of property. Dkt. No. 18 at 6-7, 9. 21 In accordance with Plaintiff’s notice, all the claims under Claim One and the 22 deficient claims under Claim Two, as discussed in the Court’s screening order,

at 13- 23 14, shall be dismissed without prejudice from this action. 24 C. Reconsideration of Court’s Denial of a Temporary Restraining Order 25 Plaintiff also requests reconsideration of the Court’s denial of his prior motion for a 26 temporary injunction based on the “following updated info,” i.e., the court has ordered 1 revisited “on added page.” Dkt. No. 19 at 1-2. However, there are no “added pages” to 2 this 2-page document. 3 No pre-judgment motion for reconsideration under Local Rule 7-9 may be brought 4 without leave of court. See Civil L.R. 7-9(a). The moving party must specifically show: 5 (1) that at the time of the motion for leave, a material difference in fact or law exists from 6 that which was presented to the court before entry of the interlocutory order for which the 7 reconsideration is sought, and that in the exercise of reasonable diligence the party 8 applying for reconsideration did not know such fact or law at the time of the interlocutory 9 order; or (2) the emergence of new material facts or a change of law occurring after the 10 time of such order; or (3) a manifest failure by the court to consider material facts which 11 were presented to the court before such interlocutory order. See Civil L.R. 7-9(b). 12 Here, Plaintiff did not first seek leave of court before making the request for 13 reconsideration. Furthermore, even if the Court construes the filing as a request to do so, 14 Plaintiff has satisfied none of these requirements under Rule 7-9(b). Accordingly, the 15 motion is DENIED. 16 17 CONCLUSION 18 For the foregoing reasons, the Court orders as follows: 19 1. The following claims are DISMISSED without prejudice: 20 a. The following claims under Claim One: (1) excessive force claim 21 against Defendant Osha; and (2) deliberate indifference claim against Defendants Osha 22 and Tracy based on the January 27, 2022 incident. Dkt. No. 18 at 5-6. 23 b. The following claims under Claim Two: (1) denial of access to courts 24 claim against Defendants Guzman and Gomez; (2) retaliation claim against Defendants 25 Tracy and Garcia; (3) medical claims against Doe Defendants; and (4) supervisor liability 26 claims against Defendants Paulson and Miaamoto. Dkt. No. 18 at 7, 9-10, 11. 1 Claim Two: (1) Fourteenth Amendment deliberate indifference claim against Defendants 2 Guzman, Tracy, Ng, Gomez, and Taylor; (2) retaliation claim against Defendant Guzman 3 for not letting him out of his cell to make calls; and (3) retaliation and unreasonable search 4 and seizure claims against Defendants Malaspeina, Huerrera, Ng, and Gomez for the cell 5 search and confiscation of property. Dkt. No. 18 at 6-7, 9. 6 The Clerk shall terminate all other Defendants from this action, including Officer 7 Osha, Officer Fields, Officer Deering, Chief Kevin Paulson, and Sheriff Miaamoto, as the 8 claims against them have been dismissed from this action. 9 3. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 10 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 11 of the amended complaint, Dkt. No. 8, all attachments thereto, and a copy of this order 12 upon Defendants Officer Guzman (#2427), Officer Tracy, Officer Ng, Officer Gomez, 13 Officer Taylor, Sgt. Malaspeina, Sgt. Huerrera, and Capt. Gomez at the San Francisco 14 County Sheriff’s Department via the Office of Chief Legal Counsel for Sheriff’s Dept. 15 (Sheriff’s Dept., Room 456, One Dr. Carlton B. Goodlett Place, San Francisco, CA 94102, 16 Attn. Mark Nicco). The Clerk shall also mail a copy of this order to Plaintiff. 17 4. No later than ninety-one (91) days from the date this order is filed, 18 Defendants shall file a motion for summary judgment or other dispositive motion with 19 respect to the claims in the amended complaint found to be cognizable above. 20 a. Any motion for summary judgment shall be supported by adequate 21 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 22 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 23 qualified immunity found, if material facts are in dispute. If any Defendant is of the 24 opinion that this case cannot be resolved by summary judgment, he shall so inform the 25 Court prior to the date the summary judgment motion is due. 26 b. In the event Defendants file a motion for summary judgment, the 1 warnings under Rand v. Rowland,

(9th Cir. 1998) (en banc). See 2 Woods v. Carey,

(9th Cir. 2012). 3 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 4 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 5 motion is filed. 6 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 7 Celotex Corp. v. Catrett,

(1986) (holding party opposing summary judgment 8 must come forward with evidence showing triable issues of material fact on every essential 9 element of his claim). Plaintiff is cautioned that failure to file an opposition to 10 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 11 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 12 Ghazali v. Moran,

, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18

(9th Cir. 1994). 14 6. Defendants shall file a reply brief no later than fourteen (14) days after 15 Plaintiff’s opposition is filed. 16 7. The motion shall be deemed submitted as of the date the reply brief is due. 17 No hearing will be held on the motion unless the Court so orders at a later date. 18 8. All communications by the Plaintiff with the Court must be served on 19 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 20 copy of the document to Defendants or Defendants’ counsel. 21 9. Discovery may be taken in accordance with the Federal Rules of Civil 22 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 23 Rule 16-1 is required before the parties may conduct discovery. 24 10. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 25 court informed of any change of address and must comply with the court’s orders in a 26 timely fashion. Failure to do so may result in the dismissal of this action for failure to 1 11. Extensions of time must be filed no later than the deadline sought to be 2 || extended and must be accompanied by a showing of good cause. 3 IT ISSO ORDERED. 4 || Dated: — November 14, 2022 EDWARD J. DAVILA 5 United States District Judge 6 7 8 9 10 1] 12

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