1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FORREST CHRISTOPHER TAYLOR, Case No. 23-cv-01393-JD

8 Plaintiff, ORDER OF SERVICE v. 9

10 R. CERVANTES, et al., Defendants. 11

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

. The 14 amended complaint was dismissed with leave to amend, and plaintiff filed a second amended 15 complaint. 16 DISCUSSION 17 STANDARD OF REVIEW 18 Federal courts engage in a preliminary screening of cases in which prisoners seek redress 19 from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). In this review, the Court will identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 27 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 1 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 2 the speculative level.” Bell Atlantic Corp. v. Twombly,

(2007) (citations 3 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 4 face.”

. The United States Supreme Court has explained the “plausible on its face” 5 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 6 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 7 should assume their veracity and then determine whether they plausibly give rise to an entitlement 8 to relief.” Ashcroft v. Iqbal,

(2009). 9 To state a claim under

, a plaintiff must allege that: (1) a right secured by 10 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 11 committed by a person acting under the color of state law. West v. Atkins,

(1988). 12 LEGAL CLAIMS 13 Plaintiff alleges that he was subject to retaliation by correctional officers who also failed to 14 protect him from violence by other prisoners. “Within the prison context, a viable claim of First 15 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 16 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such 17 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 18 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson,

, 567-68 19 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland,

(9th Cir. 1995) 20 (prisoner suing prison officials under § 1983 for retaliation must allege that he was retaliated 21 against for exercising his constitutional rights and that the retaliatory action did not advance 22 legitimate penological goals, such as preserving institutional order and discipline). The prisoner 23 must show that the type of activity he was engaged in was constitutionally protected, that the 24 protected conduct was a substantial or motivating factor for the alleged retaliatory action, and that 25 the retaliatory action advanced no legitimate penological interest. Hines v. Gomez,

, 26 267-68 (9th Cir. 1997) (inferring retaliatory motive from circumstantial evidence). 27 The Eighth Amendment requires that prison officials take reasonable measures to 1 prison officials have a duty to protect prisoners from violence at the hands of other prisoners.

2 at 833; Hearns v. Terhune,

(9th Cir. 2005). The failure of prison officials to 3 protect inmates from attacks by other inmates or from dangerous conditions at the prison violates 4 the Eighth Amendment when two requirements are met: (1) the deprivation alleged is, objectively, 5 sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to inmate 6 health or safety. Farmer, 511 U.S. at 834. A prison official is deliberately indifferent if he knows 7 of and disregards an excessive risk to inmate health or safety by failing to take reasonable steps to 8 abate it. Id. at 837. 9 Plaintiff states that in response to his administrative appeals, defendant K. Availa 10 incorrectly stated in a report and told other inmates that plaintiff was a sex offender. Later, 11 defendants L. Hernandez, A. Marroquin, N. Reveles and L. Aldama opened plaintiff’s cell door 12 and called him to the floor booth. When plaintiff was walking back to his cell, Aldama stated, 13 “now” and plaintiff was attacked by other inmates while the defendants did not intervene. Aldama 14 then pepper sprayed plaintiff in the face. One of the attackers stated, “this is what we do to sex 15 offenders.” 16 Several days later, defendants R. Melendez, R. Cervantez and P. Barrera-Negrele opened 17 plaintiff’s cell and told him to go get a meal, when it was not his normal time to eat. Plaintiff left 18 his cell and walked to get food when he was attacked. Plaintiff suffered injuries from these 19 assaults. 20 These allegations are sufficient to proceed against all defendants for retaliation and failure 21 to protect. Plaintiff also presents a claim of excessive force against Aldama for the pepper 22 spraying. 23 CONCLUSION 24 1. The Court orders that the follow defendants be served electronically at Salinas 25 Valley State Prison: K. Availa, L. Hernandez, A. Marroquin, N. Reveles, L. Aldama, R. 26 Melendez, R. Cervantez and P. Barrera-Negrele. All other defendants are dismissed from this 27 action. 1 Service on the listed defendant will be effected via the California Department of 2 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners 3 in CDCR custody. In accordance with the program, the Clerk is directed to serve on CDCR via 4 email the following documents: the operative complaint, this order of service, a CDCR Report of 5 E-Service Waiver form and a summons. The Clerk is also requested to serve a copy of this order 6 on the plaintiff. 7 No later than 40 days after service of this order via email on CDCR, CDCR will provide 8 the Court a completed CDCR Report of E-Service Waiver advising the court which defendant 9 listed in this order will be waiving service of process without the need for service by the United 10 States Marshal Service (USMS) and which defendant declines to waive service or could not be 11 reached. CDCR also will provide a copy of the CDCR Report of E-Service Waiver to the 12 California Attorney General’s Office which, within 21 days, will file with the Court a waiver of 13 service of process for the defendant if he is waiving service. 14 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk is requested to prepare 15 for each defendant who has not waived service according to the CDCR Report of E-Service 16 Waiver a USM-205 Form. The Clerk will provide to the USMS the completed USM-205 forms 17 and copies of this order, the summons and the operative complaint for service upon each defendant 18 who has not waived service. The Clerk will also provide to the USMS a copy of the CDCR 19 Report of E-Service Waiver. 20 2. To expedite the resolution of this case, the Court orders: 21 a. No later than sixty days from the date of service, defendant will file a 22 motion for summary judgment or other dispositive motion. The motion will be supported by 23 adequate factual documentation and will conform in all respects to Federal Rule of Civil 24 Procedure 56, and will include as exhibits all records and incident reports stemming from the 25 events at issue. If defendant is of the opinion that this case cannot be resolved by summary 26 judgment, he will so inform the Court prior to the date his summary judgment motion is due. All 27 papers filed with the Court will be promptly served on the plaintiff. 1 b. At the time the dispositive motion is served, defendant 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 defendant no later than thirty days from the date the motion was served 9 upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is 10 provided to him pursuant to Rand v. Rowland,

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

(9th Cir. 1988). 12 If defendant files 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 defendant wishes to file a reply brief, they will do so no later than fifteen 17 days after the opposition is served upon him. 18 e. The motion will 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 defendant, or 21 defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 22 defendant or defendant’s 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: September 25, 2023 5 6 JAMES ATO 7 United Sates District 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. 27