1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 CYMEYON V. HILL, 7 Case No. 24-cv-02739-YGR (PR) Plaintiff, 8 ORDER OF SERVICE v. 9 JENNIE CLAY, et al., 10 Defendants. 11

12 I. INTRODUCTION 13 Plaintiff, a civil detainee currently being held in custody at Napa State Hospital (“NSH”), 14 filed a pro se civil rights complaint pursuant to

. Venue is proper because the 15 events giving rise to the claim is alleged to have occurred in NSH, which is located in this judicial 16 district. See

(b). Plaintiff’s motion for leave to proceed in forma pauperis will 17 be granted in a separate order. 18 Plaintiff has named as defendants the following members of the medical staff at NSH: 19 Jennie Clay, Patty Tyler, “Tom Program Director,” and “Monique Assistant Director.” Dkt. 1 at 20 1, 3.1 Plaintiff seeks punitive damages.

. 21 II. DISCUSSION 22 A. Standard of Review 23 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 24 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 25 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 26 1 Page number citations refer to those assigned by the Court’s electronic case management 27 filing system (“ECF system”) and not those assigned by plaintiff. The Court further notes that 1 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 2 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 3 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 4 Cir. 1988). 5 To state a claim under

, a plaintiff must allege two essential elements: 6 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 7 the alleged violation was committed by a person acting under the color of state law. West v. 8 Atkins,

(1988). 9 B. Legal Claims 10 Plaintiff, who was civilly committed in 1997 following a plea of not guilty by reason of 11 insanity, alleges the following took place on May 1, 2024. Dkt. 1 at 2. Plaintiff claims the named 12 defendants “refused to place [him] in a safe environment after [he] notified the defendants that 13 [Nurse] Abie told plaintiff that she was going to have plaintiff killed for filing grievances[,] 14 lawsuits[,] and complaints against the above defendants . . . recently against defendant Jennie Clay 15 and Tom Program Director.”

16 To state a claim for First Amendment retaliation against a government official, a plaintiff 17 must demonstrate that (1) he engaged in constitutionally protected activity; (2) as a result, he was 18 subjected to adverse action by the defendant that would chill a person of ordinary firmness from 19 continuing to engage in the protected activity; and (3) there was a substantial causal relationship 20 between the constitutionally protected activity and the adverse action. Mulligan v. Nichols, 835

(9th Cir. 2016). Plaintiff has stated a cognizable First Amendment retaliation claim 22 against defendants Clay, Tyler, “Tom Program Director,” and “Monique Assistant Director.” 23 III. CONCLUSION 24 For the foregoing reasons, the Court orders as follows: 25 1. Plaintiff has stated a cognizable First Amendment retaliation claim against 26 defendants Clay, Tyler, “Tom Program Director,” and “Monique Assistant Director.” 27 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 1 and all attachments thereto (dkt. 1), and a copy of this Order to the following defendants: Jennie 2 Clay; Patty Tyler; “Tom Program Director”; and “Monique Assistant Director” at Napa 3 State Hospital, ATTN: Litigation Coordinator, 2100 Napa Vallejo Hwy., Napa, CA 94558. 4 The Clerk also shall mail a copy of the complaint and a copy of this Order to the State Attorney 5 General’s Office in San Francisco. Additionally, the Clerk shall mail a copy of this Order to 6 plaintiff. 7 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 8 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 9 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on 10 behalf of plaintiff, to waive service of the summons, fail to do so, defendants will be required to 11 bear the cost of such service unless good cause be shown for the failure to sign and return the 12 waiver form. If service is waived, this action will proceed as if defendants had been served on the 13 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendants will not be 14 required to serve and file an answer before sixty (60) days from the date on which the request for 15 waiver was sent. (This allows a longer time to respond than would be required if formal service of 16 summons is necessary.) Defendants are asked to read the statement set forth at the foot of the 17 waiver form that more completely describes the duties of the parties with regard to waiver of 18 service of the summons. If service is waived after the date provided in the Notice but before 19 defendants personally have been served, the Answer shall be due sixty (60) days from the date on 20 which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, 21 whichever is later. 22 4. Defendants shall answer the complaint in accordance with the Federal Rules of 23 Civil Procedure. The following briefing schedule shall govern dispositive motions in this action: 24 a. No later than sixty (60) days from the date their answer is due, defendants 25 shall file a motion for summary judgment or other dispositive motion. The motion must be 26 supported by adequate factual documentation, must conform in all respects to Federal Rule of 27 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 1 the events at issue. A motion for summary judgment also must be accompanied by a Rand2 notice 2 so that plaintiff will have fair, timely and adequate notice of what is required of him in order to 3 oppose the motion. Woods v. Carey,

(9th Cir. 2012) (notice requirement set out 4 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 5 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 6 However, the Court notes that under the new law of the circuit, in the rare event that a failure to 7 exhaust is clear on the face of the complaint, defendants may move for dismissal under Rule 8 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. 9 Albino v. Baca,

(9th Cir. 2014) (overruling Wyatt v. Terhune,

, 10 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under 11 the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a defendant as an 12 unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on the face of the 13 complaint, defendants must produce evidence proving failure to exhaust in a motion for summary 14 judgment under Rule 56. Id. If undisputed evidence viewed in the light most favorable to plaintiff 15 shows a failure to exhaust, defendants are entitled to summary judgment under Rule 56. Id. But if 16 material facts are disputed, summary judgment should be denied and the district judge rather than 17 a jury should determine the facts in a preliminary proceeding. Id. at 1168. 18 If defendants are of the opinion that this case cannot be resolved by summary judgment, 19 defendants shall so inform the Court prior to the date the summary judgment motion is due. All 20 papers filed with the Court shall be promptly served on plaintiff. 21 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 22 and served on defendants no later than twenty-eight (28) days after the date on which defendants’ 23 motion is filed. 24 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 25 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 26 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 27 1 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 2 any fact that would affect the result of your case, the party who asked for summary judgment is 3 entitled to judgment as a matter of law, which will end your case. When a party you are suing 4 makes a motion for summary judgment that is properly supported by declarations (or other sworn 5 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 6 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 7 as provided in Rule 56(c), that contradicts the facts shown in the defendant’s declarations and 8 documents and show that there is a genuine issue of material fact for trial. If you do not submit 9 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 10 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 11 F.3d at 962-63. 12 Plaintiff also is advised that—in the rare event that defendants argue that the failure to 13 exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available 14 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 15 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 16 exhaust your available administrative remedies before coming to federal court. Such evidence 17 may include: (1) declarations, which are statements signed under penalty of perjury by you or 18 others who have personal knowledge of relevant matters; (2) authenticated documents— 19 documents accompanied by a declaration showing where they came from and why they are 20 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 21 in your complaint insofar as they were made under penalty of perjury and they show that you have 22 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 23 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 24 motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed 25 issues of fact with regard to this portion of the case. Albino,

. 26 (The notices above do not excuse defendants’ obligation to serve similar notices again 27 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 1 d. Defendants shall file a reply brief no later than fourteen (14) days after the 2 || date plaintiffs opposition is filed. 3 e. The motion shall be deemed submitted as of the date the reply brief is due. 4 || No hearing will be held on the motion unless the Court so orders at a later date. 5 5. Discovery may be taken in this action in accordance with the Federal Rules of Civil 6 || Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to defendants to depose 7 plaintiff and any other necessary witnesses confined in prison. 8 6. All communications by plaintiff with the Court must be served on defendants or 9 || defendants’ counsel, once counsel has been designated, by mailing a true copy of the document to 10 || them. 11 7. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court 12 || mformed of any change of address and must comply with the Court’s orders in a timely fashion. 5 13 Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 14 || while an action is pending must promptly file a notice of change of address specifying the new 15 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 16 || directed to the pro se party by the Court has been returned to the Court as not deliverable, and 3 17 (2) the Court fails to receive within sixty days of this return a written communication from the pro S 18 se party indicating a current address. See L.R. 3-11(b). 19 8. Upon a showing of good cause, requests for a reasonable extension of time will be 20 || granted provided they are filed on or before the deadline they seek to extend. 21 IT IS SO ORDERED. 22 Dated: October 9, 2024 : anal JU YVONNE GONZAEEZ ROGERS 24 United States District Judge 25 26 27 28