1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DALLAS BROOKS ACHANE, Case No. 23-cv-01301-JD

8 Plaintiff, ORDER RE SERVICE v. 9

10 D. TWITCHELL, Defendant. 11

12 13 Plaintiff, a state prisoner, filed a pro se civil rights complaint under

. He 14 has been granted leave to proceed in forma pauperis. 15 DISCUSSION 16 STANDARD OF REVIEW 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek 18 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 19 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 20 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 21 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 22 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 23 Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 26 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 27 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 1 the speculative level.” Bell Atlantic Corp. v. Twombly,

(2007) (citations 2 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 3 face.”

. The United States Supreme Court has explained the “plausible on its face” 4 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 5 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 6 should assume their veracity and then determine whether they plausibly give rise to an entitlement 7 to relief.” Ashcroft v. Iqbal,

(2009). 8 To state a claim under

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

(1988). 11 LEGAL CLAIMS 12 Plaintiff alleges that he was the victim of excessive force and then forced to sleep on a 13 mattress on the floor. The treatment a convicted prisoner receives in prison and the conditions 14 under which he is confined are subject to scrutiny under the Eighth Amendment. Helling v. 15 McKinney,

(1993). “After incarceration, only the unnecessary and wanton 16 infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth 17 Amendment.” Whitley v. Albers,

(1986) (ellipsis in original) (internal quotation 18 and citation omitted). A prison official violates the Eighth Amendment when two requirements 19 are met: (1) the deprivation alleged must be, objectively, sufficiently serious, Farmer v. Brennan, 20

, 834 (1994) (citing Wilson v. Seiter,

(1991)), and (2) the prison 21 official possesses a sufficiently culpable state of mind, i.e., the offending conduct was wanton,

22 (citing Wilson,

). 23 When prison officials stand accused of using excessive force in violation of the Eighth 24 Amendment, the core judicial inquiry is whether force was applied in a good-faith effort to 25 maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson v. 26 McMillian,

(1992); Whitley,

. 27 The Constitution does not mandate comfortable prisons, but neither does it permit 1 receives in prison and the conditions under which he is confined are subject to scrutiny under the 2 Eighth Amendment. See Helling,

. The Amendment also imposes duties on these 3 officials, who must provide all prisoners with the basic necessities of life such as food, clothing, 4 shelter, sanitation, medical care and personal safety. See Farmer, 511 U.S. at 832. 5 Plaintiff alleges that at Humboldt County Correctional Facility, defendant Twitchell 6 ordered him to come downstairs and plaintiff complied and was taken to a multi-purpose room. 7 Twitchell grabbed plaintiff’s left arm, forcibly twisted it and ordered other deputies to take 8 plaintiff down. For no reason, plaintiff was forced to the ground and Twitchell punched him in the 9 face several times. While plaintiff was still on the ground defendant Shirey tased plaintiff on his 10 back. Plaintiff was then taken to the medical unit where he was refused a bed and had to sleep on 11 the ground with a blanket and mattress for a week. He was then transferred to a state prison.1 12 These allegations are sufficient to proceed against defendants Twitchell and Shirey for excessive 13 force and denying plaintiff a bed. 14 CONCLUSION 15 1. The case will go forward against Corporal D. Twitchell and Deputy Shirey. The 16 Clerk will issue a summons and the United States Marshal will serve, without prepayment of fees, 17 copies of the complaint (Dkt. No. 1) with attachments and copies of this order on: Corporal D. 18 Twitchell and Deputy Shirey at Humboldt County Correctional Facility. 19 2. In order to expedite the resolution of this case, the Court orders as follows: 20 a. No later than fifty-six days from the date of service, defendants will file a 21 motion for summary judgment or other dispositive motion. The motion will be supported by 22 adequate factual documentation and shall conform in all respects to Federal Rule of Civil 23 Procedure 56, and will include as exhibits all records and incident reports stemming from the 24 events at issue. If defendant is of the opinion that this case cannot be resolved by summary 25 judgment, he will so inform the Court prior to the date his summary judgment motion is due. All 26 papers filed with the Court will be promptly served on the plaintiff. 27 1 b. At the time the dispositive motion is served, defendants will also serve, on a 2 separate paper, the appropriate notice or notices required by Rand v. Rowland,

, 953- 3 954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune,

, 1120 n. 4 (9th Cir. 2003). 4 See Woods v. Carey,

(9th Cir. 2012) (Rand and Wyatt notices must be 5 given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed, 6 not earlier);

(separate paper requirement). 7 c. Plaintiff’s opposition to the dispositive motion, if any, will be filed with the 8 Court and served upon defendants no later than twenty-eight days from the date the motion was 9 served upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which 10 is provided to him pursuant to Rand v. Rowland,

(9th Cir. 1998) (en banc), 11 and Klingele v. Eikenberry,

(9th Cir. 1988). 12 If defendants file a motion for summary judgment claiming that plaintiff failed to exhaust 13 his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take 14 note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided 15 to him as required by Wyatt v. Terhune,

, 1120 n. 4 (9th Cir. 2003). 16 d. If defendants wish to file a reply brief, they shall do so no later than 17 fourteen days after the opposition is served upon him. 18 e. The motion shall be deemed submitted as of the date the reply brief is due. 19 No hearing will be held on the motion unless the Court so orders at a later date. 20 3. All communications by plaintiff with the Court must be served on defendants, or 21 defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 22 defendants or defendants’ counsel. 23 4. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 24 No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 25 parties may conduct discovery. 26 5. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 27 informed of any change of address by filing a separate paper with the clerk headed “Notice of 1 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 2 Civil Procedure 41(b). 3 IT IS SO ORDERED. 4 Dated: May 15, 2023 5 6 JAMES O 7 United S istrict Judge 8 9 10 11 12

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1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in the defendant’s declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 NOTICE -- WARNING (EXHAUSTION) 18 If defendants file a motion for summary judgment for failure to exhaust, they are seeking 19 to have your case dismissed. If the motion is granted it will end your case. 20 You have the right to present any evidence you may have which tends to show that you did 21 exhaust your administrative remedies. Such evidence may be in the form of declarations 22 (statements signed under penalty of perjury) or authenticated documents, that is, documents 23 accompanied by a declaration showing where they came from and why they are authentic, or other 24 sworn papers, such as answers to interrogatories or depositions. 25 If defendants file a motion for summary judgment for failure to exhaust and it is granted, 26 your case will be dismissed and there will be no trial.

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