1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 FAITDON GIPSON, 11 Case No. 22-cv-09054 EJD (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND OF SERVICE; DIRECTING v. 13 DEFENDANTS TO FILE

DISPOSITIVE MOTION OR 14 T. ASCENCIO, et al., NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 15 Defendants. CLERK

16 17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42

against prison officers at San Quentin State Prison (“SQSP”). Dkt. No. 1. 20 On April 27, 2023, the Court screened the complaint and found it stated a cognizable claim 21 under the Eighth Amendment again Defendants Ascencio, Mora, and Dossman-Perez. 22 Dkt. No. 11 at 2. However, there were no factual allegations against named Defendant 23 Officer C. Casillas.

Accordingly, Plaintiff was directed to file an amended complaint 24 to correct this deficiency or file notice that he wishes to proceed solely on the cognizable 25 claim against the other Defendants.

. Failure to do so would result in this action 26 proceeding solely on the cognizable claims against Defendants Ascencio, Mora, and 27 Dossman-Perez, and Defendant Casillas being dismissed from this action without further 1 The time to respond to the court order has passed, and Plaintiff has filed no 2 response. Accordingly, this matter shall proceed solely on the cognizable claim against 3 Defendants Ascencio, Mora, and Dossman-Perez. 4 5 DISCUSSION 6 A. Standard of Review 7 A federal court must conduct a preliminary screening in any case in which a 8 prisoner seeks redress from a governmental entity or officer or employee of a 9 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 10 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 11 upon which relief may be granted or seek monetary relief from a defendant who is immune 12 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 13 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 14 To state a claim under

, a plaintiff must allege two essential 15 elements: (1) that a right secured by the Constitution or laws of the United States was 16 violated, and (2) that the alleged violation was committed by a person acting under the 17 color of state law. See West v. Atkins,

(1988). 18 B. Plaintiff’s Claims 19 In the initial screening order, the Court found the complaint stated the following 20 cognizable claim:

21 Plaintiff claims that on October 24, 2021, he was violently assaulted by his 22 cell mate who caused serious injuries. Dkt. No. 1 at 4-9. Plaintiff claims that Defendants Ascencio, Mora, and Dossman-Perez were aware that this 23 inmate was “mentally disturbed and had violent tendencies” when they placed him in Plaintiff’s cell. Id. at 3. Plaintiff claims Defendants were 24 deliberately indifferent when they placed his life in danger, in violation of 25 the Eighth Amendment. Id. at 6-7. These allegations are sufficient to state an Eighth Amendment claim based on Defendants’ failure to protect 26 Plaintiff from attacks by other inmates or from dangerous conditions. See 27 Farmer v. Brennan,

(1994); Cortez v. Skol,

(9th Cir. 2015). 1 Dkt. No. 11 at 2. Accordingly, this action shall proceed solely on these claims against 2 Defendants Ascencio, Mora, and Dossman-Perez. 3 4 CONCLUSION 5 For the foregoing reasons, the Court orders as follows: 6 1. This action shall proceed solely on the Eighth Amendment claim against 7 Defendants Ascencio, Mora, and Dossman-Perez. Defendant Carlos Casillas is 8 DISMISSED from this action as there are no cognizable claims against him. The Clerk 9 shall terminate Defendant Casillas from this action. 10 2. The following Defendants shall be served at SQSP: 11 a. Correctional Officer T. Ascencio 12 b. Correctional Officer E. mora 13 c. Correctional Officer L. Dossman-Perez 14 Service on the listed defendant(s) shall proceed under the California Department of 15 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 16 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 17 on CDCR via email the following documents: the operative complaint and any attachments 18 thereto, Dkt. No. 1, this order of service, and a CDCR Report of E-Service Waiver form. 19 The clerk also shall serve a copy of this order on the plaintiff. 20 No later than 40 days after service of this order via email on CDCR, CDCR shall 21 provide the court a completed CDCR Report of E-Service Waiver advising the court which 22 defendant(s) listed in this order will be waiving service of process without the need for 23 service by the United States Marshal Service (USMS) and which defendant(s) decline to 24 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 25 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 26 days, shall file with the court a waiver of service of process for the defendant(s) who are 27 waiving service. 1 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 2 each defendant who has not waived service according to the CDCR Report of E-Service 3 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 4 forms and copies of this order, the summons and the operative complaint for service upon 5 each defendant who has not waived service. The clerk also shall provide to the USMS a 6 copy of the CDCR Report of E-Service Waiver. 7 3. No later than ninety-one (91) days from the date this order is filed, 8 Defendants shall file a motion for summary judgment or other dispositive motion with 9 respect to the claims in the amended complaint found to be cognizable above. 10 a. Any motion for summary judgment shall be supported by adequate 11 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 12 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 13 qualified immunity found, if material facts are in dispute. If any Defendant is of the 14 opinion that this case cannot be resolved by summary judgment, he shall so inform the 15 Court prior to the date the summary judgment motion is due. 16 b. In the event Defendants file a motion for summary judgment, the 17 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 18 warnings under Rand v. Rowland,

(9th Cir. 1998) (en banc). See 19 Woods v. Carey,

(9th Cir. 2012). 20 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 21 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 22 motion is filed. 23 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 24 Celotex Corp. v. Catrett,

(1986) (holding party opposing summary judgment 25 must come forward with evidence showing triable issues of material fact on every essential 26 element of his claim). Plaintiff is cautioned that failure to file an opposition to 27 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 1 |} Ghazali v. Moran,

(9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 2 || F.3d 651, 653 (9th Cir. 1994). 3 5. Defendants shall file a reply brief no later than fourteen (14) days after 4 || Plaintiff's opposition is filed. 5 6. The motion shall be deemed submitted as of the date the reply brief is due. 6 || No hearing will be held on the motion unless the Court so orders at a later date. 7 7. All communications by the Plaintiff with the Court must be served on 8 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 9 || copy of the document to Defendants or Defendants’ counsel. 10 8. Discovery may be taken in accordance with the Federal Rules of Civil 11 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 12 Rule 16-1 is required before the parties may conduct discovery. E 13 9. It is Plaintiffs responsibility to prosecute this case. Plaintiff must keep the S 14 || court informed of any change of address and must comply with the court’s orders in a 3 15 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 16 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). i 17 10. Extensions of time must be filed no later than the deadline sought to be 18 || extended and must be accompanied by a showing of good cause. 19 IT IS SO ORDERED. 20 || Dated: June 16, 2023 OOD. >] EDWARD J. DAVILA United States District Judge 22 23 24 25 26 27 28