1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MONROE JONES, Case No. 23-cv-05334-WHO (PR)

Plaintiff, 8 ORDER OF SERVICE;

v. 9 ORDER DIRECTING DEFENDANT TO FILE A DISPOSITIVE MOTION 10 SAN FRANCISCO POLICE OR NOTICE REGARDING SUCH DEPARTMENT, MOTION; 11 Defendant. INSTRUCTIONS TO CLERK 12

13 INTRODUCTION 14 Plaintiff Monroe Jones alleges that the San Francisco Police Department has not 15 returned property it confiscated from him. His

complaint containing 16 these allegations is now before me for review pursuant to 28 U.S.C. § 1915A(a). 17 When the allegations are liberally construed, Jones has stated a due process claim 18 against the San Francisco Police Department. Defendant is directed to file in response to 19 the complaint a dispositive motion, or a notice regarding such motion, on or before July 8, 20 2024. 21 DISCUSSION 22 A. Standard of Review 23 A federal court must conduct a preliminary screening in any case in which a 24 prisoner seeks redress from a governmental entity or officer or employee of a 25 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 26 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 27 upon which relief may be granted or seek monetary relief from a defendant who is immune 1 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 2 See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 3 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 4 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) 5 (quoting Bell Atlantic Corp. v. Twombly,

(2007)). “A claim has facial 6 plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.”

(quoting 8 Twombly,

). Furthermore, a court “is not required to accept legal 9 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 10 be drawn from the facts alleged.” Clegg v. Cult Awareness Network,

, 754-55 11 (9th Cir. 1994). 12 To state a claim under

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

(1988). 16 B. Legal Claims 17 Jones alleges that in April 2023 unnamed San Francisco police officers confiscated 18 a pellet gun and holster and, despite his requests, the police department has not returned 19 this property to him. (Compl., Dkt. No. 1 at 3.) When liberally construed, these 20 allegations state a due process claim against the San Francisco Police Department. 21 Jones states that he could obtain the confiscating officers’ names through discovery. 22 This is unnecessary. Even if Jones had their names, they would not be the proper 23 defendants. They merely confiscated his property, which is now allegedly in the 24 possession of the San Francisco Police Department. (Also, Jones does not allege that the 25 confiscation was improper.) Under these circumstances, service on the Chief of Police, 26 William Scott, seems the appropriate step. 27 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. The Court orders service of the complaint (Dkt. No. 1), and all attachments 4 thereto, on defendant William Scott, the Chief of the San Francisco Police Department, 5 and orders this defendant to respond to the cognizable claims raised in the complaint. 6 2. On or before July 8, 2024, defendant shall file a motion for summary 7 judgment or other dispositive motion with respect to the claim(s) in the complaint found to 8 be cognizable above. 9 a. If defendant elects to file a motion to dismiss on the grounds plaintiff 10 failed to exhaust his available administrative remedies as required by 42 U.S.C. 11 § 1997e(a), defendant shall do so in a motion for summary judgment, as required by 12 Albino v. Baca,

(9th Cir. 2014). 13 b. Any motion for summary judgment shall be supported by adequate 14 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 15 Civil Procedure. Defendant is advised that summary judgment cannot be granted, nor 16 qualified immunity found, if material facts are in dispute. If any defendant is of the 17 opinion that this case cannot be resolved by summary judgment, he shall so inform the 18 Court prior to the date the summary judgment motion is due. 19 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 20 and served on defendant no later than forty-five (45) days from the date defendant’s 21 motion is filed. 22 4. Defendant shall file a reply brief no later than fifteen (15) days after 23 plaintiff’s opposition is filed. 24 5. The motion shall be deemed submitted as of the date the reply brief is due. 25 No hearing will be held on the motion unless the Court so orders at a later date. 26 6. All communications by the plaintiff with the Court must be served on 27 defendant, or on defendant’s counsel once counsel has been designated, by mailing a true 1 7. Discovery may be taken in accordance with the Federal Rules of Civil 2 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 3 Rule 16-1 is required before the parties may conduct discovery. 4 8. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 5 Court informed of any change of address and must comply with the Court’s orders in a 6 timely fashion. Failure to do so may result in the dismissal of this action for failure to 7 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 8 9. Extensions of time must be filed no later than the deadline sought to be 9 extended and must be accompanied by a showing of good cause. 10 10. A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be 11 given “notice of what is required of them in order to oppose” summary judgment motions 12 at the time of filing of the motions, rather than when the court orders service of process or 13 otherwise before the motions are filed. Woods v. Carey,

(9th Cir. 14 2012). Defendant shall provide the following notice to plaintiff when he files and serves 15 any motion for summary judgment:

16 The defendants have made a motion for summary judgment by which they 17 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 18 case.

19 Rule 56 tells you what you must do in order to oppose a motion for summary 20 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 21 fact that would affect the result of your case, the party who asked for 22 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 23 judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, 24 you must set out specific facts in declarations, depositions, answers to 25 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendants’ declarations and documents and 26 show that there is a genuine issue of material fact for trial. If you do not 27 submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will 1 Rand v. Rowland,

(9th Cir. 1998). 2 IT IS SO ORDERED. 3 Dated: March 11, 2024 YMUQe ® 4 LIAM H. ORRICK 5 United States District Judge 6 7 8 9 10 11 12 14 © 15 16

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