1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 AVARO COVARRUBIAS PEREZ, 6 Case No. 24-cv-02725-DMR (PR) Plaintiff, 7 ORDER OF SERVICE; DENYING v. MOTION FOR APPOINTMENT OF 8 COUNSEL; AND REFERRING OFFICER MACIAS, et al., ACTION TO PRO SE PRISONER 9 MEDIATION PROGRAM Defendants. 10

11 I. INTRODUCTION 12 Plaintiff, a state prisoner who is currently incarcerated at the Correctional Training Facility 13 (“CTF”) has filed a pro se civil rights action pursuant to

. He also requests 14 appointment of counsel. Dkt. 1 at 3.1 This matter has been assigned to the undersigned 15 Magistrate Judge. Dkt. 3. Plaintiff’s motion for leave to proceed in forma pauperis will be 16 granted in a separate written Order. Dkt. 2. 17 In his complaint, Plaintiff names the following prison officials at CTF as Defendants: 18 Warden Craig Koenig2; Associate Warden C. Freeman; Facility Unit II Captain S. Handly; Lt. K. 19 Sirwet; and Correctional Officers L. Lopez and Macias. Dkt. 1 at 1-2. Plaintiff claims each of 20 these Defendants acted in concert with each other to carry out a strategic planned operation 21 through a so called “mandatory yard” release to “set up staged fights.”

. Plaintiff seeks 22 monetary damages.

. 23 Venue is proper because the events giving rise to the claims are alleged to have occurred at 24 CTF, which is located in this judicial district. See

(b). 25

26 1 Page number citations refer to those assigned by the court’s electronic case management filing system and not those assigned by Plaintiff. 27 II. DISCUSSION 1 A. Standard of Review 2 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 5 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 6 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 7 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 8 Cir. 1988). 9 To state a claim under

, a plaintiff must allege two essential elements: 10 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 11 the alleged violation was committed by a person acting under the color of state law. West v. 12 Atkins,

(1988). 13 B. Legal Claims 14 According to the complaint, on May 25, 2021, plaintiff, a Mexican national who had been 15 placed on an “STG” (security threat group) list at CTF, was ordered by Defendants Macias and 16 Lopez “to exit [Plaintiff’s] assigned cell and to participate in the STG 1 & STG 2 affected 17 mandatory yard release.” Dkt. 1 at 3. Plaintiff “witnessed a large amount of Correctional 18 Officials in riot gear as well as gurneys lined up in front of housing unit G-Wing.”

Plaintiff 19 and “[his] fellow echo wing housing unit inmates were approaching the west gate to enter the 20 exercise yard [and] [he] personally witnessed the STG II BULDOG INMATES in a strategic 21 formation anticipating to attack immediately . . . .”

Plaintiff claims that as he and the other 22 inmates exited the west gate onto the exercise yard, “the STG II BULLDOG INMATES started 23 barking then charged all echo wing housing unit inmates where [Plaintiff] got brutally beat down 24 by several STG II Bulldogs.”

Plaintiff claims that he “was fleeing as well as attempting to 25 defend [him]self [and] [he] was sprayed in the face by correctional officials with [a] chemical 26 agent (PEPPER SPRAY) instead of [his] aggressors.”

Plaintiff fell to the ground “where [he] 27 was being beat and kicked” and then “dragged to the entrance area . . . .”

1 Plaintiff claims that he suffered “serious injuries . . . surrounding the staged fights.”

2 Liberally construed, plaintiff’s allegations are sufficient to state an Eighth Amendment 3 deliberately indifference to safety claim against the named Defendants for failure to protect 4 plaintiff from violence at the hands of other prisoners. See Farmer v. Brennan,

, 833 5 (1994). Plaintiff’s allegations are also sufficient to state supervisor liability based on Defendants’ 6 implementation of an allegedly constitutionally deficient policy to integrate STG inmates, 7 knowing an attack was likely to occur. See Redman v. County of San Diego,

, 1446 8 (9th Cir. 1991) (en banc). Lastly, the court shall take supplemental jurisdiction over plaintiff’s 9 related state law claims under

(a). 10 III. MOTION FOR APPOINTMENT OF COUNSEL 11 Plaintiff’s motion for appointment of counsel is DENIED for want of exceptional 12 circumstances. See Rand v. Rowland,

(9th Cir. 1997); see also Lassiter v. 13 Dep’t of Social Services,

(1981) (there is no constitutional right to counsel in a 14 civil case). This denial is without prejudice to the court’s sua sponte appointment of counsel at a 15 future date should the circumstances of this case warrant such appointment. 16 IV. REFERRAL TO PRO SE PRISONER MEDIATION PROGRAM 17 The Northern District of California has established a Pro Se Prisoner Mediation Program. 18 Certain prisoner civil rights cases may be referred to a neutral magistrate judge for prisoner 19 mediation proceedings. The proceedings will consist of one or more conferences as determined by 20 the mediator. At this time, the conferences shall be conducted with the parties and/or their 21 representatives attending by videoconferencing. 22 Good cause appearing, the court hereby REFERS this case to Magistrate Judge Robert M. 23 Illman for settlement proceedings pursuant to the Pro Se Prisoner Mediation Program. Such 24 proceedings shall take place within ninety (90) days of the date this Order is filed, or as soon 25 thereafter as Magistrate Judge Illman’s calendar will permit. Magistrate Judge Illman shall 26 coordinate a place, time and date for one or more settlement conferences with all interested parties 27 and/or their representatives and, within ten (10) days after the conclusion of all settlement V. CONCLUSION 1 For the foregoing reasons, the court orders as follows: 2 1. Plaintiff’s complaint states cognizable Eighth Amendment and supervisory liability 3 claims against the named Defendants stemming from the May 25, 2021 incident. The court shall 4 also take supplemental jurisdiction over plaintiff’s related state law claims. 5 2. The following Defendant(s) shall be served: Warden Craig Koenig ; Associate 6 Warden C. Freeman; Facility Unit II Captain S. Handly; Lt. K. Sirwet; and Correctional 7 Officers L. Lopez and Macias at CTF. 8 Service on the listed Defendant(s) shall proceed under the California Department of 9 Corrections and Rehabilitation’s (“CDCR”) e-service pilot program for civil rights cases from 10 prisoners in CDCR custody. In accordance with the program, the Clerk of the Court is directed to 11 serve on CDCR via email the following documents: the operative complaint, this order of service, 12 the notice of assignment of prisoner case to a United States magistrate judge and accompanying 13 magistrate judge jurisdiction consent or declination to consent form, a CDCR Report of E-Service 14 Waiver form and a summons. 15 No later than forty (40) days after service of this order via email on CDCR, CDCR shall 16 provide the court a completed CDCR Report of E-Service Waiver advising the court which 17 Defendant(s) listed in this order will be waiving service of process without the need for service by 18 the United States Marshal Service (USMS) and which Defendant(s) decline to waive service or 19 could not be reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver 20 and of the notice of assignment of prisoner case to a magistrate judge and accompanying 21 magistrate judge jurisdiction consent or declination to consent form to the California Attorney 22 General’s Office, which, within twenty-one (21) days, shall file with the court a waiver of service 23 of process for the Defendant(s) who are waiving service and, within twenty-eight (28) days 24 thereafter, shall file a magistrate judge jurisdiction consent or declination to consent form as to the 25 Defendant(s) who waived service. 26 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 27 Defendant who has not waived service according to the CDCR Report of E-Service Waiver a 1 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 form and copies 2 of this order, summons, operative complaint and notice of assignment of prisoner case to a 3 magistrate judge and accompanying magistrate judge jurisdiction consent or declination to consent 4 form for service upon each Defendant who has not waived service. The clerk also shall provide to 5 the USMS a copy of the CDCR Report of E-Service Waiver. 6 The clerk shall also mail a copy of the operative complaint and a copy of this order to the 7 State Attorney General’s Office in San Francisco. Additionally, the clerk shall mail a copy of this 8 order to Plaintiff. 9 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 10 requires Defendants to cooperate in saving unnecessary costs of service of the summons and 11 complaint. If service is waived, this action will proceed as if Defendants had been served on the 12 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), Defendants will not be 13 required to serve and file an answer before sixty (60) days from the date on which the CDCR 14 provides a copy of the CDCR Report of E-Service Waiver to the California Attorney General’s 15 Office. (This allows a longer time to respond than would be required if formal service of 16 summons is necessary.) If Defendants have not waived service and have instead been served by 17 the USMS, then Defendants shall serve and file an answer within twenty-one (21) days after 18 being served with the summons and complaint. 19 4. All communications by Plaintiff with the court must be served on Defendants or 20 their counsel, once counsel has been designated, by mailing a true copy of the document to them. 21 5. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 22 informed of any change of address and must comply with the court’s orders in a timely fashion. 23 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 24 while an action is pending must promptly file a notice of change of address specifying the new 25 address. See L.R. 3-11(a). The court may dismiss without prejudice a complaint when: (1) mail 26 directed to the pro se party by the court has been returned to the court as not deliverable, and 27 (2) the court fails to receive within sixty days of this return a written communication from the pro 1 6. Upona showing of good cause, requests for a reasonable extension of time will be 2 granted provided they are filed on or before the deadline they seek to extend. 3 7. Plaintiff’s motion for appointment of counsel is DENIED without prejudice. Dkt. 1 4 at 3. 5 8. This action is referred to the Pro Se Prisoner Mediation Program. The Clerk is 6 directed to serve Magistrate Judge Illman with a copy of this Order and to notify Magistrate Judge 7 Illman that a copy of the court file can be retrieved from the court’s electronic filing database. In 8 view of the referral to the Pro Se Prisoner Mediation Program, after the complaint has been served 9 on the aforementioned named Defendants against whom Plaintiff has alleged cognizable claims, 10 all other further proceedings in this case are hereby STAYED. If the case is not settled, the Court 11 will enter a scheduling order for further proceedings. 12 IT IS SO ORDERED. 13 Dated: May 21, 2024 14 ______________________________________ DONNA M. RYU 15 Chief Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27