1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID ANTHONY LOVELL, Case No. 24-cv-02071-WHO (PR)

8 Plaintiff, ORDER OF SERVICE;

9 v. ORDER DIRECTING DEFENDANT TO FILE A DISPOSITIVE MOTION 10 SANCHEZ, et al., OR NOTICE REGARDING SUCH MOTION; 11 Defendants. INSTRUCTIONS TO CLERK

12

13 INTRODUCTION 14 Plaintiff David Anthony Lovell alleges that a sheriff’s deputy violated his Eighth 15 Amendment rights during a body search. His

complaint containing these 16 allegations is now before me for review pursuant to 28 U.S.C. § 1915A(a). 17 Lovell has stated claims Eighth Amendment claims of excessive force and sexual 18 assault against Lieutenant Taylor at the Santa Rita Jail. Taylor is directed to file in 19 response to the complaint a dispositive motion, or a notice regarding such motion, on or 20 before November 1, 2024. All other claims and defendants are DISMISSED. 21 No hearing will be held on any motion unless I specifically order one. 22 DISCUSSION 23 A. Standard of Review 24 A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 27 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 3 See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 4 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 5 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) 6 (quoting Bell Atlantic Corp. v. Twombly,

(2007)). “A claim has facial 7 plausibility when the plaintiff pleads factual content that allows the court to draw the 8 reasonable inference that the defendant is liable for the misconduct alleged.”

(quoting 9 Twombly,

). Furthermore, a court “is not required to accept legal 10 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 11 be drawn from the facts alleged.” Clegg v. Cult Awareness Network,

, 754–55 12 (9th Cir. 1994). 13 To state a claim under

, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged violation was committed by a person acting under the 16 color of state law. See West v. Atkins,

(1988). 17 B. Legal Claims 18 Lovell alleges that on November 22, 2022 at the Santa Rita Jail, Lieutenant Taylor 19 used excessive force and sexually assaulted him during a body search. (Compl., Dkt. No. 20 1 at 3.) When liberally construed, Lovell has stated claims under the Eighth Amendment. 21 All other claims and defendants are DISMISSED. Lovell names Sheriffs Ahern and 22 Sanchez, but the allegations against them — failing to reprimand their subordinate — do 23 not relate to the claims against Taylor and also fail to state a claim for relief. 24 CONCLUSION 25 For the foregoing reasons, the Court orders as follows: 26 1. The Clerk of the Court shall issue summons and the United States 27 Marshal shall serve, without prepayment of fees, a copy of the operative complaint in this 1 Rita Jail, and orders this defendant to respond to the cognizable claims raised in the 2 operative complaint. 3 2. On or before November 1, 2024, defendant shall file a motion for summary 4 judgment or other dispositive motion with respect to the claim(s) in the complaint found to 5 be cognizable above. 6 a. If defendant elects to file a motion to dismiss on the grounds plaintiff 7 failed to exhaust his available administrative remedies as required by 42 U.S.C. 8 § 1997e(a), defendant shall do so in a motion for summary judgment, as required by 9 Albino v. Baca,

(9th Cir. 2014). 10 b. 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. Defendant is 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 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 17 and served on defendants no later than forty-five (45) days from the date defendant’s 18 motion is filed. 19 4. Defendant shall file a reply brief no later than fifteen (15) days after 20 plaintiff’s opposition is filed. 21 5. The motion shall be deemed submitted as of the date the reply brief is due. 22 No hearing will be held on the motion unless the Court so orders at a later date. 23 6. All communications by the plaintiff with the Court must be served on 24 defendant, or on defendant’s counsel once counsel has been designated, by mailing a true 25 copy of the document to defendant or defendant’s counsel. 26 7. Discovery may be taken in accordance with the Federal Rules of Civil 27 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 1 Plaintiff may use any applicable jail procedures to request copies of (or the 2 opportunity to review) any reports, medical records, or other records maintained by jail 3 officials that are relevant to the claims found cognizable in this Order. Such requests must 4 be made directly to jail officials, not to the Court. 5 8. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 6 Court informed of any change of address and must comply with the Court’s orders in a 7 timely fashion. Failure to do so may result in the dismissal of this action for failure to 8 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 9 9. Extensions of time must be filed no later than the deadline sought to be 10 extended and must be accompanied by a showing of good cause. 11 10. A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be 12 given “notice of what is required of them in order to oppose” summary judgment motions 13 at the time of filing of the motions, rather than when the court orders service of process or 14 otherwise before the motions are filed. Woods v. Carey,

(9th Cir. 15 2012). Defendants shall provide the following notice to plaintiff when he files and serves 16 any motion for summary judgment:

17 The defendants have made a motion for summary judgment by which they 18 seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your 19 case.

20 Rule 56 tells you what you must do in order to oppose a motion for summary 21 judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact — that is, if there is no real dispute about any 22 fact that would affect the result of your case, the party who asked for 23 summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary 24 judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, 25 you must set out specific facts in declarations, depositions, answers to 26 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendants’ declarations and documents and 27 show that there is a genuine issue of material fact for trial. If you do not may be entered against you. If summary judgment is granted, your case will 1 □ . . be dismissed and there will be no trial. 2 Rand yv. Rowland,

(9th Cir. 1998). 3 IT IS SO ORDERED. 4 || Dated: July 8, 2024 . 5 ® ILLIAM H. ORRICK 6 United States District Judge 7 8 9 10 11 a 12

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