1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 ANTHONY W. OLIVER, 11 Case No. 22-cv-06049 EJD (PR) Plaintiff, 12 ORDER OF SERVICE; DENYING MOTION FOR LEAVE TO 13 v. PROCEED IN FORMA PAUPERIS AS MOOT; DIRECTING 14 DEFENDANT TO FILE DISPOSITIVE MOTION OR 15 R. GARCIA, et al., NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 16 Defendants. CLERK 17 (Docket No. 2)

18 19 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42

against prison officers at the Correctional Training Facility (“CTF”). Dkt. 21 No. 1. Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”), Dkt. no. 2, 22 which will be denied as moot since he paid the filing fee. Dkt. No. 3. 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See

§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 5 To state a claim under

, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins,

(1988). 9 B. Plaintiff’s Claims 10 Plaintiff claims that Correctional Officer R. Garcia and a correctional Sergeant 11 “John Doe” retaliated against him for filing grievances. Dkt. No. 1 at 3. Specifically, 12 Plaintiff claims that on July 11, 2020, he complained to Defendant Garcia for not properly 13 wearing his mask around Plaintiff who is high risk due to his age and pre-existing medical 14 conditions. Id. at 5. On July 17, 2020, Defendant Garcia confronted Plaintiff about filing 15 a grievance against him. Id. at 5. Then on August 19, 2020, Plaintiff claims Defendant 16 Garcia, without authorization, had the G-Wing’s telephone calls reduced from 15 minutes 17 to 5 minutes “to harass Plaintiff and those similar[ly] situated.” Id. at 6. When Plaintiff 18 confronted Defendant Garcia about the change, Defendant told him, “‘Oliver, don’t talk to 19 me about that stuff anymore, if you write me up again I am going to move you out the 20 Unit.’” Id. On August 21, 2020, Plaintiff attempted to give Defendant an Inmate Request 21 for Interview, to pursue the matter with a sergeant. Id. However, Defendant did not return 22 the form, but rather, came to move Plaintiff to another housing on August 27, 2020. Id. 23 Plaintiff claims that the Sgt. John Doe, who approved the move, conspired with 24 Defendant Garcia to move Plaintiff into a quarantine restricted Unit. Id. at 7. Plaintiff 25 claims that Defendants’ retaliatory acts caused a chilling effect, preventing him from filing 26 another grievance against Defendant Garcia. Id. Plaintiff seeks declaratory relief and 27 damages. Id. at 3, 9. Plaintiff’s allegations are sufficient to state a retaliation claim against 1 C. Doe Defendant 2 Although the use of “John Doe” to identify a defendant is not favored in the Ninth 3 Circuit, see Gillespie v. Civiletti,

(9th Cir. 1980); Wiltsie v. Cal. Dep't 4 of Corrections,

(9th Cir. 1968), situations may arise where the identity 5 of alleged defendants cannot be known prior to the filing of a complaint. In such 6 circumstances, the plaintiff should be given an opportunity through discovery to identify 7 the unknown defendants, unless it is clear that discovery would not uncover their identities 8 or that the complaint should be dismissed on other grounds. See Gillespie,

642; Velasquez v. Senko,

(N.D. Cal. 1986). 10 Plaintiff has alleged sufficient facts to indicate that the identity of Sgt. John Doe is 11 discoverable. If Plaintiff is able to identity this Defendant through discovery, he may 12 move for leave to amend to substitute “John Doe’s” name and have him served with this 13 action. Plaintiff must diligently seek to identify the identity of this unknown Defendant 14 and move to substitute the named individual for the Doe defendant during the pendency of 15 this action against Defendant Garcia or risk dismissal of the claims against him for failure 16 to state a claim for relief. 17 18 CONCLUSION 19 For the reasons set forth above, the Court orders as follows: 20 1. Defendant Correctional Officer R. Garcia shall be served at CTF. 21 Service on the listed defendant(s) shall proceed under the California Department of 22 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 23 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 24 on CDCR via email the following documents: the operative complaint and any attachments 25 thereto, Dkt. No. 1, this order of service, and a CDCR Report of E-Service Waiver form. 26 The clerk also shall serve a copy of this order on the plaintiff. 27 No later than 40 days after service of this order via email on CDCR, CDCR shall 1 defendant(s) listed in this order will be waiving service of process without the need for 2 service by the United States Marshal Service (USMS) and which defendant(s) decline to 3 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 4 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 5 days, shall file with the court a waiver of service of process for the defendant(s) who are 6 waiving service. 7 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 8 each defendant who has not waived service according to the CDCR Report of E-Service 9 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 10 forms and copies of this order, the summons and the operative complaint for service upon 11 each defendant who has not waived service. The clerk also shall provide to the USMS a 12 copy of the CDCR Report of E-Service Waiver. 13 2. Plaintiff must provide to the Court the name Defendant Sgt. “John Doe” by 14 the dispositive motion due date indicated below. Failure to do so will result in dismissal 15 of Defendant Sgt. John Doe without prejudice to Plaintiff filing a new action against him. 16 3. No later than ninety-one (91) days from the date this order is filed, 17 Defendants shall file a motion for summary judgment or other dispositive motion with 18 respect to the claims in the complaint found to be cognizable above. 19 a. Any motion for summary judgment shall be supported by adequate 20 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 21 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 22 qualified immunity found, if material facts are in dispute. If any Defendant is of the 23 opinion that this case cannot be resolved by summary judgment, he shall so inform the 24 Court prior to the date the summary judgment motion is due. 25 b. In the event Defendants file a motion for summary judgment, the 26 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 27 warnings under Rand v. Rowland,

(9th Cir. 1998) (en banc). See 1 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 2 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 3 motion is filed. 4 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 5 Celotex Corp. v. Catrett,

(1986) (holding party opposing summary judgment 6 must come forward with evidence showing triable issues of material fact on every essential 7 element of his claim). Plaintiff is cautioned that failure to file an opposition to 8 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 9 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 10 Ghazali v. Moran,

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

(9th Cir. 1994). 12 5. Defendants shall file a reply brief no later than fourteen (14) days after 13 Plaintiff’s opposition is filed. 14 6. The motion shall be deemed submitted as of the date the reply brief is due. 15 No hearing will be held on the motion unless the Court so orders at a later date. 16 7. All communications by the Plaintiff with the Court must be served on 17 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 18 copy of the document to Defendants or Defendants’ counsel. 19 8. Discovery may be taken in accordance with the Federal Rules of Civil 20 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 21 Rule 16-1 is required before the parties may conduct discovery. 22 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 23 court informed of any change of address and must comply with the court’s orders in a 24 timely fashion. Failure to do so may result in the dismissal of this action for failure to 25 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 26 10. Extensions of time must be filed no later than the deadline sought to be 27 extended and must be accompanied by a showing of good cause. 1 11. Plaintiff's motion for leave to proceed IFP is DENIED as moot since he has 2 || paid the filing fee. Dkt. Nos. 2, 3. 3 This order terminates Docket No. 2. 4 IT IS SO ORDERED. 5 || Dated: March 29, 2023 spy. 6 EDWARD J. DAVILA United States District Judge 7 8 9 10 1] g

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