1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTWYONE LYNCH, Case No. 24-cv-02136-JSW

8 Plaintiff, ORDER OF SERVICE v. 9

10 M. MOWERY, et al., Defendants. 11

12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42

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

at 1915A(b)(1),(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't,

(9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 27 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 1 which it rests."'" Erickson v. Pardus,

(2007) (citations omitted). Although 2 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 3 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 4 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 5 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 6 Atlantic Corp. v. Twombly,

(2007) (citations omitted). A complaint 7 must proffer "enough facts to state a claim for relief that is plausible on its face."

. 8 To state a claim under

, a plaintiff must allege two essential elements: (1) 9 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 10 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 11

(1988). 12 B. LEGAL CLAIMS 13 When liberally construed, Plaintiff’s allegations state cognizable claims against Defendants 14 Kuster and Mowery for retaliating against him for exercising his First Amendment rights, and 15 against Kuster for violating his Eighth Amendment right to safety from harm by other prisoners.1 16 CONCLUSION For the reasons set out above, 17 1. Defendants Sergeant A. Kuster and Lieutenant M. Mowery shall be served at the 18 California Training Facility. Service shall proceed under the California Department of 19 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners 20 in CDCR custody. In accordance with the program, the clerk is directed to serve on CDCR via 21 email the following documents: the Amended Complaint, this Order, a CDCR Report of E-Service 22 Waiver form, and a summons. The clerk also shall serve a copy of this order on the plaintiff. 23 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 24 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 25 listed in this order will be waiving service of process without the need for service by the United 26

27 1 These claims were dismissed without prejudice for improper joinder in Lynch v. Martinez, et al., 1 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 2 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 3 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of 4 service of process for the defendant(s) who are waiving service. 5 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 6 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 7 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies 8 of this order, the summons, and the operative complaint for service upon each defendant who has 9 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 10 Service Waiver. 11 2. The Defendants shall file an answer in accordance with the Federal Rules of Civil 12 Procedure. 13 3. In order to expedite the resolution of this case: 14 a. No later than 91 days from the date this order is filed, the remaining defendants, 15 including those who have been ordered served above, shall file a motion for summary judgment or 16 other dispositive motion. If defendants are of the opinion that this case cannot be resolved by 17 summary judgment, they shall so inform the court prior to the date the summary judgment motion 18 is due. All papers filed with the court shall be promptly served on the plaintiff. 19 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 20 court and served upon defendants no later than 28 days from the date of service of the motion. 21 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him 22 pursuant to Rand v. Rowland,

(9th Cir. 1998) (en banc), and Klingele v. 23 Eikenberry,

(9th Cir. 1988). 24 c. Defendants shall file a reply brief no later than 14 days after the date of service 25 of the opposition. 26 d. The motion shall be deemed submitted as of the date the reply brief is due. No 27 hearing will be held on the motion unless the court so orders at a later date. 1 Rand warning at the same time they served him with their motion. Failure to do so will result in 2 || the summary dismissal of their motion. 3 4. All communications by the plaintiff with the court must be served on defendants, or 4 || defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 5 defendants or their counsel. 6 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 7 further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required 8 || before the parties may conduct discovery. 9 Plaintiff is reminded that state prisoners inmates may review all non-confidential material 10 || in their medical and central files, pursuant to In re Olson,

(Cal. Ct. App. 11 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 12 || Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. Requests to 5 13 || review these files or for copies of materials in them must be made directly to prison officials, not 14 || to the court. 15 6. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 16 || informed of any change of address and must comply with the court's orders in a timely fashion. 3 17 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 18 Federal Rule of Civil Procedure 41(b). 19 IT IS SO ORDERED. 20 || Dated: April 18, 2024 f } Lhe Liha 21 0 JEFFREY S. WHITE United/states istrict Judge 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, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 18 19 20 21 22 23 24 25 26 27