1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOVANNY J. MENDEZ, Case No. 22-cv-04677-AMO

8 Plaintiff, ORDER RE SERVICE v. 9

10 C. CONTRERAS, et al., Defendants. 11

12 13 On May 14, 2024, Plaintiff, a prisoner at Pelican Bay State Prison (“PBSP”), filed a 14 “Restated Original and First Supplemental Complaint.” 1 ECF 52. He alleges that, since 15 commencing this action under

on August 15, 2022, correctional officers used 16 excessive force on him in October 2022.

. Plaintiff’s operative complaint is before 17 the Court for screening pursuant to 28 U.S.C. § 1915A.2 18 DISCUSSION 19 A. Standard of Review 20 A federal court must conduct a preliminary screening in any case in which a prisoner 21 seeks redress from a governmental entity or officer or employee of a governmental entity. 22 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 23 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be 24

25 1 Plaintiff commenced this action pro se. ECF 1. On January 18, 2024, the Court appointed pro bono counsel. ECF 40. On May 13, 2024, the Court granted Plaintiff’s unopposed motion for 26 leave to file the operative complaint. ECF 51.

27 2 The Court screened Plaintiff’s original complaint and directed defendants to file an answer. ECF 1 granted, or seek monetary relief from a defendant who is immune from such relief. See 28 2 U.S.C. § 1915A(b)(1), (2). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and 3 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 4 “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what 5 the . . . claim is and the grounds upon which it rests.’ ” Erickson v. Pardus,

, 93 6 (2007) (citations omitted). While Rule 8 does not require detailed factual allegations, it demands 7 more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556

, 677-78 (2009). A pleading that offers only labels and conclusions, or a formulaic 9 recitation of the elements of a cause of action, or naked assertions devoid of further factual 10 enhancement does not suffice.

To state a claim under

, a plaintiff must allege 11 two essential elements: (1) that a right secured by the Constitution or laws of the United States 12 was violated, and (2) that the alleged violation was committed by a person acting under the color 13 of state law. See West v. Atkins,

(1988). 14 B. Legal Claims 15 Plaintiff alleges that he has experienced harassment and intimidation in retaliation for 16 filing administrative complaints against defendants as well as his original complaint in this action. 17 ECF 52 ¶ 35. On October 25, 2022, officers conducted a mass search of inmates’ cells. Id. ¶ 36. 18 The search was conducted by the same officers named in Plaintiff’s original complaint – C. 19 Contreras, J. Taylor, J. Evans, A. Maylin, A. Shaad, and Sergeant L. Northup. Id. One of those 20 officers – Maylin – engaged in a physical altercation with Plaintiff. Id. Plaintiff was quickly 21 detained by twenty officers, who piled on top of him. Id. The officers punched and beat him, and 22 it was difficult for Plaintiff to stand or walk once he was upright. Id. Plaintiff’s hands and ankles 23 were then shackled, and he was escorted to the “Hobby Shop” by Officers Gonzalez and Garcia. 24 Id. ¶ 37. Officers Garcia, Gonzalez, Evans,3 and Loftin then beat Plaintiff so badly that he lost 25 consciousness and could not stand or walk by the end of it. Id. ¶ 38-39. Liberally construed, these 26 allegations state a cognizable claim against Officers Garcia, Gonzalez, Evans, and Loftin for using 27 1 excessive force in violation of the Eighth Amendment and the California Bane Act, California 2 Civil Code § 52.1. See Whitley v. Albers,

(1986) (Eighth Amendment prohibits 3 excessive force in the form of “unnecessary and wanton infliction of pain” on a convicted 4 prisoner); Sayres v. California, No. 24-CV-00330-TLT,

, at *2 (N.D. Cal. Apr. 5 16, 2024) (finding that plaintiff stated a cognizable claim under the Bane Act where he alleged 6 that the defendants acted with reckless disregard for his constitutional rights). 7 CONCLUSION 8 For the foregoing reasons, the Court orders as follows: 9 1. The Court ORDERS that service on the following defendants shall proceed under 10 the California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for 11 civil rights cases from prisoners in the CDCR’s custody: 12 a. Officer Garcia 13 b. Officer Gonzalez 14 c. Officer Loftin 15 In accordance with the program, the Clerk is directed to serve on the CDCR via email the 16 following documents: the operative complaint (ECF. No. 52), this Order of Service, a CDCR 17 Report of E-Service Waiver form, and a summons. Appointed counsel shall provide Plaintiff with 18 a copy of this order. 19 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 20 provide the court a completed CDCR Report of E-Service Waiver advising the court which 21 defendant(s) listed in this order will be waiving service of process without the need for service by 22 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 23 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 24 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 25 a waiver of service of process for the defendant(s) who are waiving service. Upon receipt of the 26 CDCR Report of E-Service Waiver, the Clerk shall prepare for each defendant who has not 27 waived service according to the CDCR Report of E-Service Waiver a USM-205 Form. The Clerk 1 and the operative complaint for service upon each defendant who has waived service. The Clerk 2 also shall provide to the USMS a copy of the CDCR Report of E-Service Waiver. 3 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 4 requires defendants to cooperate in saving unnecessary costs of service of the summons and 5 complaint. If service is waived, this action will proceed as if defendants had been served on the 6 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), defendants will not be 7 required to serve and file an answer before sixty (60) days from the date on which the CDCR 8 provides a copy of the CDCR Report of E-Service Waiver to the California Attorney General’s 9 Office. (This allows a longer time to respond than would be required if formal service of summons 10 is necessary.) If defendants have not waived service and have instead been served by the USMS, 11 then defendants shall serve and file an answer within twenty-one (21) days after being served with 12 the summons and complaint. 13 3. Defendants shall answer the complaint in accordance with the Federal Rules of 14 Civil Procedure. The following briefing schedule shall govern dispositive motions in this action: 15 a. No later than sixty (60) days from the date their answer is due, defendants 16 shall file a motion for summary judgment or other dispositive motion.4 The motion must be 17 supported by adequate factual documentation, must conform in all respects to Federal Rule of 18 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 19 the events at issue. A motion for summary judgment also must be accompanied by a Rand5 notice 20 so that plaintiff will have fair, timely, and adequate notice of what is required of him in order to 21 oppose the motion. Woods v. Carey,

(9th Cir. 2012) (notice requirement set out 22 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 23 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 24 However, the Court notes that under the law of the circuit, in the rare event that a failure to 25 4 The parties shall meet and confer in the event this order warrants any adjustment to the existing 26 case schedule, see ECF 45, and shall propose any appropriate adjustment in the case management statement due August 1, 2024. See ECF 49. Only one summary judgment motion will be allowed 27 per side absent leave of Court. See Standing Order for Civil Cases ¶ E.1. 1 exhaust is clear on the face of the complaint, defendants may move for dismissal under Rule 2 12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 12(b) 3 motion. Albino v. Baca,

(9th Cir. 2014) (en banc) (overruling Wyatt v. 4 Terhune,

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

. 18 (The notices above do not excuse defendants’ obligation to serve similar notices again 19 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 20 motions for summary judgment. Woods,

.) 21 d. Defendants shall file a reply brief no later than seven (7) days after the date 22 plaintiff’s opposition is filed. 23 4. Discovery may be taken in this action in accordance with the Federal Rules of Civil 24 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to defendants to depose 25 plaintiff and any other necessary witnesses confined in prison. 26 5. All communications by plaintiff with the Court must be served on defendants or 27 their counsel, once counsel has been designated, by mailing a true copy of the document to them 1 6. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court 2 || informed of any change of address and must comply with the Court’s orders in a timely fashion. 3 Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 4 || while an action is pending must promptly file a notice of change of address specifying the new 5 address. See Civil L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: 6 (1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable, 7 and (2) the Court fails to receive within sixty days of this return a written communication from the 8 || pro se party indicating a current address. See Civil L.R. 3-11(b). 9 7. Upon a showing of good cause, requests for a reasonable extension of time will be 10 || granted provided they are filed at least seven days prior to the deadline they seek to extend. 11 See Standing Order for Civil Cases D.2. 12 IT IS SO ORDERED. 5 13 Dated: June 12, 2024 Onncak WelP 15 z ARACELI MARTINEZ-OLGUIN = 16 United States District Judge

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