1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENRY L. YOUNG, Case No. 21-cv-09375-WHO (PR)

Plaintiff, 8 ORDER OF SERVICE;

v. 9 ORDER DIRECTING DEFENDANT TO FILE A DISPOSITIVE MOTION 10 BATTLES, OR NOTICE REGARDING SUCH MOTION; Defendant. 11 INSTRUCTIONS TO CLERK

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13 14 INTRODUCTION 15 Plaintiff Kenry L. Young alleges that Deputy Battles, an employee of the Contra 16 Costa Sheriff’s Department, used excessive force against him. His third amended 42

complaint containing these allegations is now before the Court for review 18 pursuant to 28 U.S.C. § 1915A(a). 19 Young has stated a cognizable Eighth Amendment claim against Deputy Battles. 20 All other claims and defendants are DISMISSED. The Court directs defendant Battles to 21 file in response to the operative complaint a dispositive motion, or a notice regarding such 22 motion, on or before April 10, 2023. 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 3 See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 4 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 5 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) 6 (quoting Bell Atlantic Corp. v. Twombly,

(2007)). “A claim has facial 7 plausibility when the plaintiff pleads factual content that allows the court to draw the 8 reasonable inference that the defendant is liable for the misconduct alleged.”

(quoting 9 Twombly,

). Furthermore, a court “is not required to accept legal 10 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 11 be drawn from the facts alleged.” Clegg v. Cult Awareness Network,

, 754–55 12 (9th Cir. 1994). 13 To state a claim under

, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged violation was committed by a person acting under the 16 color of state law. See West v. Atkins,

(1988). 17 B. Legal Claims 18 i. Prior Complaints 19 Young filed an unsigned complaint, then filed an amended and signed 20 complaint. (Dkt. Nos. 1 and 11.) He then filed a motion for leave to file an amended 21 complaint, which I granted. (Dkt. Nos. 14 and 16.) He filed a second amended complaint, 22 and about a month later he filed a motion for leave to file an amended complaint, which I 23 granted and dismissed the second amended complaint. (Dkt. Nos. 19, 20, and 21.) Young 24 was ordered to file an amended complaint by August 1, 2022, but did not. (Dkt. No. 21 at 25 1.) I then ordered Young to file by October 10, 2022 either (i) a written statement 26 indicating that he wishes the second amended complaint to be reinstated and serve as the 27 operative complaint in this suit; or (ii) an amended complaint. Young filed an amended 1 ii. Third Amended Complaint 2 Young alleges that on January 4, 2021 at the Contra Costa Detention Facility, 3 Deputy Battles used excessive force on him. (Third Am. Compl., Dkt. No. 23 at 3.) He 4 names as defendants Battles, Contra Costa County, and the Contra Costa Sheriff’s 5 Department. 6 When liberally construed, Young has stated a cognizable Eighth Amendment claim 7 against Battles. All other claims and defendants are DISMISSED. Local governments, 8 such as Contra Costa County, are “persons” subject to liability under

9 where official policy or custom causes a constitutional tort, see Monell v. Dep’t of Social 10 Servs.,

(1978), but a municipality may not be held vicariously liable for 11 the unconstitutional acts of its employees under the theory of respondeat superior, see 12 Board of County Comm’rs v. Brown,

(1997); Monell,

. 13 To impose municipal liability under § 1983 for a violation of constitutional rights, a 14 plaintiff must show: (1) that the plaintiff possessed a constitutional right of which he or 15 she was deprived; (2) that the municipality had a policy; (3) that the policy amounted to 16 deliberate indifference to the plaintiff’s constitutional rights; and (4) that the policy was 17 the moving force behind the constitutional violation. See Plumeau v. School Dist. #40 18 County of Yamhill,

(9th Cir. 1997). Nothing in the operative complaint 19 meets the requirements to establish liability for either Contra Costa County or the Contra 20 Costa Sherriff’s Department. 21 CONCLUSION 22 For the foregoing reasons, the Court orders as follows: 23 1. The Court orders service of the third amended complaint (Dkt. No. 23), and 24 all attachments thereto, on defendant Deputy Battles, an employee of the Contra Costa 25 Sheriff’s Department, and orders this defendant to respond to the cognizable claims raised 26 in the operative complaint. 27 2. On or before April 10, 2023, defendant shall file a motion for summary 1 be cognizable above. 2 a. If defendant elects to file a motion to dismiss on the grounds plaintiff 3 failed to exhaust his available administrative remedies as required by 42 U.S.C. 4 § 1997e(a), defendant shall do so in a motion for summary judgment, as required by 5 Albino v. Baca,

(9th Cir. 2014). 6 b. Any motion for summary judgment shall be supported by adequate 7 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 8 Civil Procedure. Defendant is advised that summary judgment cannot be granted, nor 9 qualified immunity found, if material facts are in dispute. If any defendant is of the 10 opinion that this case cannot be resolved by summary judgment, he shall so inform the 11 Court prior to the date the summary judgment motion is due. 12 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 13 and served on defendant no later than forty-five (45) days from the date defendant’s 14 motion is filed. 15 4. Defendant shall file a reply brief no later than fifteen (15) days after 16 plaintiff’s opposition is filed. 17 5. The motion shall be deemed submitted as of the date the reply brief is due. 18 Unless the Court grants leave, no sur-replies or other briefing will be allowed after the 19 reply brief is filed. No hearing will be held on the motion unless the Court so orders at a 20 later date. 21 6. All communications by the plaintiff with the Court must be served on 22 defendants, or defendants’ counsel once counsel has been designated, by mailing a true 23 copy of the document to defendants or defendants’ counsel. 24 7. Discovery may be taken in accordance with the Federal Rules of Civil 25 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 26 Rule 16-1 is required before the parties may conduct discovery. 27 Plaintiff is reminded that state prisoners may review all non-confidential material in 1 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 2 Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. 3 Requests to review these files or for copies of materials in them must be made directly to 4 prison officials, not to the court. 5 Plaintiff may also use any applicable jail procedures to request copies of (or the 6 opportunity to review) any reports, medical records, or other records maintained by jail 7 officials that are relevant to the claims found cognizable in this order. Such requests must 8 be made directly to jail officials, not to the Court. 9 8. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 10 Court informed of any change of address and must comply with the Court’s orders in a 11 timely fashion. Failure to do so may result in the dismissal of this action for failure to 12 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 13 9. Extensions of time must be filed no later than the deadline sought to be 14 extended and must be accompanied by a showing of good cause. 15 10. A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be 16 given “notice of what is required of them in order to oppose” summary judgment motions 17 at the time of filing of the motions, rather than when the court orders service of process or 18 otherwise before the motions are filed. Woods v. Carey,

(9th Cir. 19 2012). Defendants shall provide the following notice to plaintiff when he files and serves 20 any motion for summary judgment:

21 The defendants have made a motion for summary judgment by which they 22 seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your 23 case.

24 Rule 56 tells you what you must do in order to oppose a motion for summary 25 judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact — that is, if there is no real dispute about any 26 fact that would affect the result of your case, the party who asked for 27 summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary 1 testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 2 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendants’ declarations and documents and 3 show that there is a genuine issue of material fact for trial. If you do not 4 submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will 5 be dismissed and there will be no trial. 6 || Rand vy. Rowland,

(9th Cir. 1998). 7 11. Defendants Contra Costa County and the Contra Costa Sheriff's Department 8 || are DISMISSED as defendants in this action, as are the claims against them. 9 12. The Clerk shall modify the docket to show that the only defendant in this 10 || action is Deputy Battles, and shall TERMINATE the other defendants. 11 IT IS SO ORDERED. a 12 Dated: January 11, 2023

© LIAM H. ORRICK United States District Judge

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