1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERIC PHILLIPS, Case No. 22-cv-07206-YGR

8 Plaintiff, SECOND ORDER OF SERVICE v. 9

10 RON BROOMFIELD, Defendant. 11

12 13 INTRODUCTION 14 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42

alleging that defendants violated his rights under the Eighth Amendment by 16 transferring over 100 inmates, some of whom were infected with COVID-19, from the California 17 Institution for Men (CIM) to San Quentin State Prison (SQSP) in May 2020. The case was 18 assigned to Judge William H. Orrick for the limited purpose of resolution of certain common legal 19 issues with the case number 22-mc-80066-WHO. Dkt. No. 8. The Court screened plaintiff’s 20 complaint (Dkt. No. 1) pursuant to 28 U.S.C. § 1915A, found that plaintiff’s allegations stated a 21 cognizable Eighth Amendment claim for deliberate indifference to his safety needs, and ordered 22 service on SQSP Warden Ron Broomfield. Dkt. No. 11. The Court dismissed plaintiff’s claim for 23 damages against the California Department of Corrections and Rehabilitation (CDCR). Id. On 24 February 16, 2023, defendant Broomfield appeared and waived personal service of the complaint 25 pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. Dkt. No. 13. Judge Orrick issued 26 an order to show cause regarding the common legal issues as applied to defendant Broomfield, 27 followed by an order determining that the complaint would not be dismissed against defendant 1 state an adequate Eighth Amendment claim. Dkt. Nos. 15, 17. 2 After Judge Orrick’s order to show cause and before his order denying qualified and PREP 3 Act immunity, plaintiff filed an amended complaint. Dkt. No. 16. For the reasons discussed 4 below, the complaint is ordered served on the additional defendants named in the amended 5 complaint. 6 I. DISCUSSION 7 A. Motion for Leave to Amend 8 The Court construes plaintiff’s filing at Docket No. 16 as a motion for leave to amend his 9 complaint. Plaintiff seeks to add the following additional defendants to his pending Eighth 10 Amendment claim: 11 a. CDCR Secretary Ralph Diaz 12 b. CDCR Director Kathleen Allison 13 c. Associate Director of Reception Mission Ron Davis 14 d. Federal Receiver Clark Kelso 15 e. SQSP Chief Medical Executive Allison Pachynski 16 f. CIM Warden Dean Borders 17 g. CCHCS Director Joseph Bick 18 h. Does 1-100 19 Dkt. No. 16 at 1. He alleges that these additional defendants “violat[ed] his rights under the 20 Eighth Amendment due to the Chino transfer that created the deadly COVID-19 outbreak in June 21 2020.” Id. 22 B. Analysis 23 Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given 24 when justice so requires.” In considering whether to grant or deny a motion seeking leave to 25 amend a complaint, the Court may consider whether there is bad faith, undue delay, prejudice to 26 the opposing party, futility in the amendment, and whether plaintiff has previously amended his 27 complaint. See Allen v. City of Beverly Hills,

(9th Cir. 1990). 1 defendant Broomfield, who was among those prison officials involved in the transfer of inmates 2 from CIM to SQSP, it follows that plaintiff has stated a cognizable Eighth Amendment against the 3 additional newly named defendants, who plaintiff has alleged were also involved in the transfer. 4 The Court orders service of plaintiff’s Eighth Amendment claim so that these newly named 5 defendants may address it. Accordingly, plaintiff’s case may now proceed on the Eighth 6 Amendment claim against these newly named defendants. 7 Because these additional named defendants have all been named in many of the other cases 8 that are part of the consolidated 22-mc-80066-WHO matter assigned to Judge Orrick and have 9 been actively involved in the ongoing litigation in that matter, the Court finds that defendants have 10 received adequate notice of the Eighth Amendment claim and that they will not be prejudiced by 11 the amendment. The operative pleading remains the original complaint. See Dkt. No. 1. 12 Leave to amend will not be permitted to add defendants Does 1-100, Dkt. No. 16 at 1, 13 because plaintiff has not made any specific allegations regarding any Doe defendants. 14 CONCLUSION For the reasons set out above, 15 1. Except for adding the newly named aforementioned defendants, the original 16 complaint (Dkt. No. 1) remains as the operative pleading in this action. 17 2. The case will continue to proceed on plaintiff’s Eighth Amendment claim regarding 18 the May 2020 transfer of CIM inmates into SQSP. The Court ORDERS that service on the 19 following defendants shall proceed under the California Department of Corrections and 20 Rehabilitation (“CDCR”) e-service program for civil rights cases from prisoners in the CDCR’s 21 custody: 22 a. CDCR Secretary Ralph Diaz 23 b. CDCR Director Kathleen Allison 24 c. Associate Director of Reception Mission Ron Davis 25 d. SQSP Chief Medical Executive Allison Pachynski 26 e. CIM Warden Dean Borders 27 f. CCHCS Director Joseph Bick 1 In accordance with the program, the Clerk is directed to serve on the CDCR via email the 2 following documents: the operative complaint (Dkt. No. 1), the amended complaint (Dkt. No. 16), 3 this Order of Service, a CDCR Report of E-Service Waiver form, and a summons. The Clerk also 4 shall serve a copy of this order on the plaintiff. 5 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 6 provide the court a completed CDCR Report of E-Service Waiver advising the court which 7 defendant(s) listed in this order will be waiving service of process without the need for service by 8 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 9 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 10 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 11 a waiver of service of process for the defendant(s) who are waiving service. 12 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 13 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 14 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 15 of this order, the summons and the operative complaint for service upon each defendant who has 16 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 17 Service Waiver. 18 3. The Court ORDERS that service on defendant Clark Kelso shall proceed 19 separately. The Clerk is directed to electronically serve Clark Kelso and his attorney via the email 20 address [email protected] the following documents: the operative complaint 21 (Dkt. No. 1), the amended complaint (Dkt. No. 16), this Order of Service, and a Waiver of the 22 Service of Summons form. 23 4. All Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 24 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 25 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on 26 behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the 27 cost of such service unless good cause can be shown for their failure to sign and return the waiver 1 5. This Court will issue a scheduling order for summary judgment or other dispositive 2 || motion briefing after resolution of the common issues in the 22-mc-80066-WHO matter as to the 3 |} newly named defendants. See Dkt. No. 8. 4 6. All communications by plaintiff with the Court must be served on defendants’ 5 counsel by mailing a true copy of the document to defendants’ counsel. The Court may disregard 6 any document which a party files but fails to send a copy of to his opponent. Until defendants’ 7 counsel has been designated, plaintiff may mail a true copy of the document directly to 8 defendants, but once defendants are represented by counsel, all documents must be mailed to 9 counsel rather than directly to defendants. 10 7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 11 Court informed of any change of address and must comply with the Court’s orders in a timely 12 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 5 13 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 14 || pending case every time he is moved to a new facility. 15 8. Any motion for an extension of time must be filed no later than the deadline sought 16 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 3 17 he must include the case name and case number for this case on any document he submits to the S 18 || Court for consideration in this case. 19 IT IS SO ORDERED. 20 || Dated: May 23, 2023 21 22 Lazeat Hisgct,fp beg □ J E YVONNE GONZALEZ ROGERS 23 United States District Judge 24 25 26 27 28