1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FORREST KENDRID, Case No. 23-cv-04762-TLT

8 Plaintiff, ORDER OF SERVICE v. 9

10 CHARLES SCHUYLER, et al., Defendants. 11

12 Plaintiff, a pro se civil detainee, filed this civil-rights action pursuant to

. 13 ECF 1. He has been granted leave to proceed in forma pauperis in a separate order. For the 14 reasons set forth below, this action will be ordered served on defendants. 15 DISCUSSION 16 A. Standard of Review 17 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 18 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 19 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 20 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 21 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 22 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi,

989, 993 (9th Cir. 2020). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 26 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 27 grounds upon which it rests.’” Erickson v. Pardus,

(2007) (citations omitted). 1 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 2 do. . .. Factual allegations must be enough to raise a right to relief above the speculative level.” 3 Bell Atlantic Corp. v. Twombly,

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

. All or part 5 of a complaint filed by a prisoner may be dismissed Sua sponte if the prisoner’s claims lack an 6 arguable basis in either law or in fact. 7 To state a claim under

, a plaintiff must allege two essential elements: (1) 8 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 9 alleged violation was committed by a person acting under the color of state law. See West v. 10 Atkins,

(1988). 11 If a court dismisses a complaint for failure to state a claim, it should “freely give 12 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to 13 deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, 14 repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the 15 opposing party by virtue of allowance of the amendment, [and] futility of amendment.” 16 Leadsinger, Inc. v. BMG Music Pub.,

(9th Cir. 2008). 17 B. Discussion 18 Plaintiff, a pro se civil detainee who was formerly in custody at Salinas Valley State Prison 19 (SVSP), filed several civil rights cases in August and September of 2023 alleging violation of his 20 constitutional rights at SVSP. In Case No. 23-cv-04020, the Court denied plaintiff’s motion for a 21 Temporary Restraining Order (TRO) in connection with a Prison Rape Elimination Act (PREA) 22 complaint he made about Nurse Inneh and retaliatory conduct by other defendants at the 23 institution, but ordered service of his complaint on the five defendants and required the defendants 24 to answer the complaint. Case No. 23-cv-04020 at ECF 20. 25 In the instant case, plaintiff named as defendants SVSP warden Schuyler, facility captain 26 H. Lomeli, and chief executive officer Scott Langevin, alleging that each knew about the 27 retaliation plaintiff was experiencing for filing his lawsuit against nurses Inneh and Ekanem about 1 protect him. ECF 1 at 2-4, 7. He originally sought only injunctive relief. Id. at 3, 6, 8. He later 2 filed a motion for leave to file an amended complaint to seek damages from defendants. ECF 3. 3 Plaintiff’s motion is GRANTED. The First Amended Complaint (FAC), ECF 3 at 2-10, will 4 hereby be considered the operative complaint. 5 Plaintiff alleges in the FAC that defendants “all had knowledge of the sexual abuse and 6 retaliatory action taken against plaintiff” based on the grievances he filed. ECF 3 at 5. He says 7 those under the control of defendants caused him physical pain by beating him. Id. Named 8 defendants “condone[d] the acts of plaintiff being abused in retaliation.” Id. They “colluded [sic] 9 together to disregard California Code of Regulations Title 15 section 3999.22(e).” They knew that 10 plaintiff was suffering “beating, threats, inadequate medical care, intimidation and encouraging 11 plaintiff to kill himself, leaving plaintiff in feces, not changing his diaper, days without 12 show[er]ing him, denying plaintiff mental health groups.” Id. The defendants were on notice via 13 plaintiff’s complaints and grievances over many months, but failed to take disciplinary action 14 against the people subjecting plaintiff to the treatment he complained of. Id. at 6. Plaintiff’s 15 family requested protective measures for plaintiff from the defendants, who denied the request. 16 Id. Defendants disregarded California Code of Regulation title 15 section 3401.6(d) and (e). Id. 17 Defendants failed to follow their regulations prohibiting retaliation for reporting staff misconduct. 18 Id. 19 Plaintiff requested protective measures such as “housing changes or transfers for inmate 20 victims, removal of alleged staff from contact with victims, and emotional support services for 21 inmates or staff who fear retaliation for reporting staff sexual harassment or for cooperating with 22 investigations.” Id. at 7. Defendants did not provide plaintiff with any of these things. Id. 23 Defendant Lomeli informed plaintiff’s family that he and the warden and chief executive officer 24 would not implement protective measures and that staff whom plaintiff reported for excessive 25 force and sexual harassment would not be separated from him. Id. 26 Plaintiff had a psychotic episode in which he threatened his abusers and followed through 27 with his threat. Id. Defendants’ inaction and action placed plaintiff at risk. Id. Plaintiff alleges 1 of cruel and unusual punishment under the Eighth and Fourteenth Amendment. Id. at 8. 2 Defendants willfully and maliciously disregarded plaintiff’s federal rights. Id. Plaintiff seeks 3 injunctive relief in the form of separating him from the people he alleges harassed him and 4 enjoining defendants from assaulting him or retaliating against him, as well as compensatory and 5 punitive damages and attorney fees. Id. at 9-10. 6 Plaintiff was moved to the California Medical Facility (CMF) in January of 2024, mooting 7 his claims for injunctive relief, which the Court will dismiss. See ECF 4. The Court will also 8 dismiss plaintiff’s official capacity claims, which are treated as claims against the state itself, and 9 are barred by the Eleventh Amendment. 10 The Due Process Clause of the Fourteenth Amendment prohibits subjecting civil detainees 11 to conditions that amount to punishment. See generally Jones v. Blanas,

, 931-32 12 (2004). Liberally construed, plaintiff has stated a cognizable Fourteenth Amendment claim 13 against defendants Schuyler, Lomeli, and Langevin for failing to take steps to protect him from 14 staff misconduct about which plaintiff repeatedly informed them. 15 CONCLUSION 16 1. Plaintiff’s claims for injunctive relief are DISMISSED. 17 2. Plaintiff’s claims against defendants in their official capacities are DISMISSED. 18 3. Plaintiff’s motion for leave to file an amended complaint (ECF 3) is GRANTED. 19 4. The Court ORDERS that service on the following defendants shall proceed under 20 the California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for 21 civil rights cases from prisoners in the CDCR’s custody: 22 a. Warden Schuyler 23 b. Facility Captain Lomeli 24 c. CEO Langevin 25 In accordance with the program, the Clerk is directed to serve on the CDCR via email the 26 following documents: the operative complaint (ECF. No. 3), this Order of Service, a CDCR 27 Report of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order 1 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 2 provide the court a completed CDCR Report of E-Service Waiver advising the court which 3 defendant(s) listed in this order will be waiving service of process without the need for service by 4 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 5 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 6 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 7 a waiver of service of process for the defendant(s) who are waiving service. 8 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 9 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 10 USM-285 Form. The Clerk shall provide to the USMS the completed USM-285 forms and copies 11 of this order, the summons, and the operative complaint for service upon each defendant who has 12 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 13 Service Waiver. 14 5. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 15 requires defendants to cooperate in saving unnecessary costs of service of the summons and 16 complaint. If service is waived, this action will proceed as if defendants had been served on the 17 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), defendants will not be 18 required to serve and file an answer before sixty (60) days from the date on which the CDCR 19 provides a copy of the CDCR Report of E-Service Waiver to the California Attorney General’s 20 Office. (This allows a longer time to respond than would be required if formal service of 21 summons is necessary.) If defendants have not waived service and have instead been served by 22 the USMS, then defendants shall serve and file an answer within twenty-one (21) days after being 23 served with the summons and complaint. 24 6. Defendants shall answer the complaint in accordance with the Federal Rules of 25 Civil Procedure. The following briefing schedule shall govern dispositive motions in this action: 26 a. No later than sixty (60) days from the date their answer is due, defendants 27 shall file a motion for summary judgment or other dispositive motion. The motion must be 1 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 2 the events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice 3 so that plaintiff will have fair, timely, and adequate notice of what is required of him in order to 4 oppose the motion. Woods v. Carey,

(9th Cir. 2012) (notice requirement set out 5 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 6 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 7 However, the Court notes that under the law of the circuit, in the rare event that a failure to 8 exhaust is clear on the face of the complaint, defendants may move for dismissal under Rule 9 12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 12(b) 10 motion. Albino v. Baca,

(9th Cir. 2014) (en banc) (overruling Wyatt v. 11 Terhune,

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

. 1 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 2 || motions for summary judgment. Woods,

.) 3 d. Defendants shall file a reply brief no later than fourteen (14) days after the 4 || date plaintiff's opposition is filed. 5 e. The motion shall be deemed submitted as of the date the reply brief is due. 6 || No hearing will be held on the motion unless the Court so orders at a later date. 7 7. Discovery may be taken in this action in accordance with the Federal Rules of Civil 8 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to defendants to depose 9 || plaintiff and any other necessary witnesses confined in prison. 10 8. All communications by plaintiff with the Court must be served on defendants or 11 their counsel, once counsel has been designated, by mailing a true copy of the document to them. 12 9. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court 5 13 informed of any change of address and must comply with the Court’s orders in a timely fashion. 14 || Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 3 15 while an action is pending must promptly file a notice of change of address specifying the new 16 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 3 17 directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) 18 the Court fails to receive within sixty days of this return a written communication from the pro se 19 || party indicating a current address. See L.R. 3-11(b). 20 10. Upon a showing of good cause, requests for a reasonable extension of time will be 21 granted provided they are filed on or before the deadline they seek to extend. 22 11. This Order terminates ECF 3. 23 IT IS SO ORDERED. 24 Dated: March 19, 2024 25

7 TRINA L: MPSON United States District Judge 28