1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IVAN V. CLEVELAND, et al., Case No. 23-cv-05312-JSW

8 Plaintiffs, ORDER OF SERVICE AND PARTIAL 9 v. DISMISSAL

10 TUCKER, et al., Defendants. 11

12 INTRODUCTION 13 Plaintiff Ivan Cleveland,1 a California prisoner proceeding pro se, filed this civil rights 14 case under

against officials at the California Training Facility. He has paid the 15 filing fee. For the reasons discussed below, certain claims are dismissed, and the complaint is 16 ordered served on certain Defendants based on the retaliation claim that is, when liberally 17 construed, cognizable. 18 ANALYSIS 19 A. STANDARD OF REVIEW 20 Federal courts must engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 23 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 24 monetary relief from a defendant who is immune from such relief.

at 1915A(b)(1),(2). Pro se 25 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't,

(9th 26 1 The complaint includes an additional inmate as a Plaintiff, Deveron Ratliff. Mr. Ratliff has not 27 signed the pleadings, the complaint makes no allegations about him, and Mr. Cleveland, who is 1 Cir. 1990). 2 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 3 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 4 statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon 5 which it rests."'" Erickson v. Pardus,

(2007) (citations omitted). Although 6 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 7 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 8 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 9 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 10 Atlantic Corp. v. Twombly,

(2007) (citations omitted). A complaint 11 must proffer "enough facts to state a claim for relief that is plausible on its face."

. 12 To state a claim under

, a plaintiff must allege two essential elements: (1) 13 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 14 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 15

(1988). 16 B. LEGAL CLAIMS 17 When liberally construed, Plaintiff’s allegations of that defendants Tucker, Adams, and 18 Lujano removed him from his job, verbally harassed him, created a hostile work, and/or 19 endangered him with other prisoners, all in retaliation for filing a staff complaint, state cognizable 20 retaliation claims against them under the First Amendment. 21 When liberally construed, Plaintiff’s allegations that Defendant Lujano endangered him at 22 the hands of other prisoners states a cognizable claim for the violation of Plaintiff’s Eighth 23 Amendment rights. 24 Plaintiff’s allegations against that Defendant Gash failed to grant his staff complaint does 25 not state a cognizable claim for relief under Section 1983 because there is no constitutional right to 26 a prison administrative appeal or grievance system. See Ramirez v. Galaza,

, 860 27 (9th Cir. 2003). 1 plausibly show any Defendants violated any procedural or substantive due process rights. Plaintiff 2 also does not allege facts plausibly showing any Defendants treated him differently than other 3 similarly situated inmates so as to violate his right to equal protection. 4 CONCLUSION For the reasons set out above, 5 1. Plaintiff Ratliffe’s claims are DISMISSED without prejudice to his brining his claims in 6 a separate case. Plaintiff Cleveland’s claims against Defendant Gash are DISMISSED for failure 7 to state a cognizable claim for relief. Plaintiff’s due process and equal protection claims against 8 all Defendants are DISMISSED for failure to state a cognizable basis for relief. Plaintiff’s 9 remaining viable claims are retaliation claims against Defendants Adams and Lujano and an 10 Eighth Amendment endangerment claim against Defendant Lujano, as described above. 11 2. Defendants Mr. Tucker, a “food manager,” Ms. Lujano, a “culinary secretary,” and Mr. 12 Adams, a “free staff culinary worker,” shall be served at the California Training Facility. 13 Service shall proceed under the California Department of Corrections and Rehabilitation’s 14 (CDCR) e-service program for civil rights cases from prisoners in CDCR custody. In accordance 15 with the program, the clerk is directed to serve on CDCR via email the following documents: the 16 Amended Complaint, this Order, a CDCR Report of E-Service Waiver form, and a summons. The 17 clerk also shall serve a copy of this order on the plaintiff. 18 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 19 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 20 listed in this order will be waiving service of process without the need for service by the United 21 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 22 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 23 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of 24 service of process for the defendant(s) who are waiving service. 25 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 26 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 27 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies 1 of this order, the summons, and the operative complaint for service upon each defendant who has 2 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 3 Service Waiver. 4 3. The Defendants shall file an answer in accordance with the Federal Rules of Civil 5 Procedure. 6 4. In order to expedite the resolution of this case: 7 a. No later than 91 days from the date this order is filed, the remaining defendants, 8 including those who have been ordered served above, shall file a motion for summary judgment or 9 other dispositive motion. If defendants are of the opinion that this case cannot be resolved by 10 summary judgment, they shall so inform the court prior to the date the summary judgment motion 11 is due. All papers filed with the court shall be promptly served on the plaintiff. 12 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 13 court and served upon defendants no later than 28 days from the date of service of the motion. 14 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him 15 pursuant to Rand v. Rowland,

(9th Cir. 1998) (en banc), and Klingele v. 16 Eikenberry,

(9th Cir. 1988). 17 c. Defendants shall file a reply brief no later than 14 days after the date of service 18 of the opposition. 19 d. The motion shall be deemed submitted as of the date the reply brief is due. No 20 hearing will be held on the motion unless the court so orders at a later date. 21 e. Along with his motion, defendants shall file proof that they served plaintiff the 22 Rand warning at the same time they served him with their motion. Failure to do so will result in 23 the summary dismissal of their motion. 24 5. All communications by the plaintiff with the court must be served on defendants, or 25 defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 26 defendants or their counsel. 27 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 1 before the parties may conduct discovery. 2 Plaintiff is reminded that state prisoners inmates may review all non-confidential material 3 in their medical and central files, pursuant to In re Olson,

(Cal. Ct. App. 4 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 5 || Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. Requests to 6 || review these files or for copies of materials in them must be made directly to prison officials, not 7 to the court. 8 7. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 9 informed of any change of address and must comply with the court's orders in a timely fashion. 10 || Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to ll Federal Rule of Civil Procedure 41(b). g 12 IT IS SO ORDERED.

13 || Dated: February 28, 2024

14 ool Ch nite 15 lf AP _AEFHREY S.)VHITE A 16 / /Uni/ed Statys District Judge

/

Z 18 19 20 21 22 23 24 25 26 27 28

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 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, 3 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be a 16 || dismissed and there will be no trial.

19 IT IS SO ORDERED. 20 Dated: February 28, 2024 21 / | 22 Yous 4 White JEFFREY S. WHITE 23 Uaited StateYDistrict Judge 24 25 26 27 28