1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 CARL MOLANO, 7 Case No. 25-cv-00723-DMR (PR) Plaintiff, 8 ORDER OF SERVICE v. 9 KIFLE MELISSE, 10 Defendant. 11

12 I. INTRODUCTION 13 Plaintiff, a state prisoner currently incarcerated at the California State Prison - Sacramento, 14 has filed a pro se civil rights action pursuant to

, alleging that Defendant was 15 deliberately indifferent to Plaintiff’s medical needs while he was at San Quentin State Prison 16 (“SQSP”), where he was formerly incarcerated. In his complaint, Plaintiff names Defendant Kifle 17 Melisse, a SQSP Psychiatric Technician. Plaintiff seeks monetary and punitive damages. Dkt. 1 18 at 11.1 19 This matter has been assigned to the undersigned Magistrate Judge. Dkt. 3. His motion 20 for leave to proceed in forma pauperis will be granted in a separate written Order. Dkt. 2. 21 Venue is proper because the events giving rise to the claims are alleged to have occurred at 22 SQSP, which is located in this judicial district. See

(b). 23 II. DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 1 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 2 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 3 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 4 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 5 Cir. 1988). 6 To state a claim under

, a plaintiff must allege two essential elements: 7 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 8 the alleged violation was committed by a person acting under the color of state law. West v. 9 Atkins,

(1988). 10 B. Deliberate Indifference to Serious Medical Needs 11 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 12 proscription against cruel and unusual punishment. See Estelle v. Gamble,

, 104 13 (1976); McGuckin v. Smith,

(9th Cir. 1992), overruled on other grounds, 14 WMX Technologies, Inc. v. Miller,

, 1136 (9th Cir. 1997) (en banc); Jones v.

F.2d 769, 771 (9th Cir. 1986). A determination of “deliberate indifference” involves 16 an examination of two elements: the seriousness of the prisoner’s medical need and the nature of 17 the defendant’s response to that need. See McGuckin,

. A “serious” medical 18 need exists if the failure to treat a prisoner’s condition could result in further significant injury or 19 the “unnecessary and wanton infliction of pain.”

(citing Estelle v. Gamble,

). 20 A prison official is deliberately indifferent if he or she knows that a prisoner faces a substantial 21 risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer 22 v. Brennan,

(1994). 23 Plaintiff alleges that on January 17, 2023, Defendant, who was in charge of handing out 24 medications to inmates in the East Block at SQSP, gave Plaintiff antipsychotic medication 25 prescribed to another inmate. Dkt. 1 at 5-7. Plaintiff took the medication. Id. at 7. A few 26 minutes later, Defendant returned to inform Plaintiff that those were not his pills and asked if he 27 had taken them. Id. Plaintiff informed Defendant that he had taken the pills. Id. Then, Defendant 1 Id. Before taking the second dose of medication, Plaintiff asked Defendant “whether he would be 2 okay,” and Defendant “assured him that he would be ok.” Id. Plaintiff took the second dose of 3 pills. Id. Plaintiff claims that Defendant “did not call for medical attention after giving Plaintiff 4 medications prescribed to another inmate, nor did he call for help after giving Plaintiff 5 medications known to interact with one another.” Id. at 8. 6 The next day, January 18, 2023, at around 7:00 a.m., Plaintiff “was found on the floor of 7 his cell, unresponsive in a nearly comatose state, lying on his right side.” Id. Correctional officers 8 summoned medical personnel, who administered “five (5) rounds of Narcan” to Plaintiff, but the 9 Narcan “did not result in any change to [his] condition.” Id. Plaintiff was then transferred by 10 ambulance to Marin Health Medical Center, where he was booked into the Intensive Care Unit. 11 Id. He spent seven days in the hospital before he returned to SQSP. Id. 12 Plaintiff claims “[a]s a result of the incident, [he] experienced acute metabolic toxic 13 encephalopathy,2 acute kidney injury, swelling and loss of use of his right arm, decreased lunch 14 functioning, and hip pain.” Id. He also alleges that he “suffered and continues to suffer lasting 15 psychological and physiological effects from the incident, including but not limited to insomnia, 16 PTSD, depression, anxiety, and fatigue.” Id. 17 Liberally construed, the complaint states cognizable Eighth Amendment claims against 18 Defendant for deliberate indifference to Plaintiff’s serious medical needs when Defendant: 19 “(1) gave Plaintiff medications known to interact with one another and (2) did not call for medical 20 attention.” Id. at 9. 21 C. State Law Claim 22 Plaintiff alleges that Defendant’s failure to summon medical care, after discovering that 23 Plaintiff had ingested medications that were not prescribed to him, violates California tort law. Id. 24 at 10-11. The federal supplemental jurisdiction statute provides that “‘district courts shall have 25 supplemental jurisdiction over all other claims that are so related to claims in the action within 26 such original jurisdiction that they form part of the same case or controversy under Article III of 27 1 the United States Constitution.’”

(a). 2 Liberally construed, Plaintiff’s allegations satisfy the statutory requirement. Accordingly, 3 the court will exercise supplemental jurisdiction over plaintiff’s state law claim. 4 III. CONCLUSION 5 For the foregoing reasons, the court orders as follows: 6 1. Plaintiff’s complaint states a cognizable claim of deliberate indifference to his 7 medical needs against Defendant. The court will also exercise supplemental jurisdiction over 8 Plaintiff’s state law claim. 9 2. The following Defendant(s) shall be served: Psychiatric Technician Kifle Melisse 10 at SQSP. Service on the listed Defendant(s) shall proceed under the California Department of 11 Corrections and Rehabilitation’s (CDCR) e-service pilot program for civil rights cases from 12 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve on 13 CDCR via email the following documents: the operative complaint, this order of service, the 14 notice of assignment of prisoner case to a United States magistrate judge and accompanying 15 magistrate judge jurisdiction consent or declination to consent form, a CDCR Report of E-Service 16 Waiver form and a summons. 17 No later than forty (40) days after service of this order via email on CDCR, CDCR shall 18 provide the court a completed CDCR Report of E-Service Waiver advising the court which 19 Defendant(s) listed in this order will be waiving service of process without the need for service by 20 the United States Marshal Service (USMS) and which Defendant(s) decline to waive service or 21 could not be reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver 22 and of the notice of assignment of prisoner case to a magistrate judge and accompanying 23 magistrate judge jurisdiction consent or declination to consent form to the California Attorney 24 General’s Office, which, within twenty-one (21) days, shall file with the court a waiver of service 25 of process for the Defendant(s) who are waiving service and, within twenty-eight (28) days 26 thereafter, shall file a magistrate judge jurisdiction consent or declination to consent form as to the 27 Defendant(s) who waived service. 1 Defendant who has not waived service according to the CDCR Report of E-Service Waiver a 2 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 form and copies 3 of this order, summons, operative complaint and notice of assignment of prisoner case to a 4 magistrate judge and accompanying magistrate judge jurisdiction consent or declination to consent 5 form for service upon each defendant who has not waived service. The clerk also shall provide to 6 the USMS a copy of the CDCR Report of E-Service Waiver. 7 The clerk shall also mail a copy of the operative complaint and a copy of this order to the 8 State Attorney General’s Office in San Francisco. Additionally, the clerk shall mail a copy of this 9 order to Plaintiff. 10 3. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires 11 Defendant to cooperate in saving unnecessary costs of service of the summons and complaint. If 12 service is waived, this action will proceed as if Defendant had been served on the date that the 13 waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), Defendant will not be required to 14 serve and file an answer before sixty (60) days from the date on which the CDCR provides a copy 15 of the CDCR Report of E-Service Waiver to the California Attorney General’s Office. (This 16 allows a longer time to respond than would be required if formal service of summons is 17 necessary.) If Defendant has not waived service and have instead been served by the USMS, then 18 Defendant shall serve and file an answer within twenty-one (21) days after being served with the 19 summons and complaint. 20 4. Defendant shall answer the complaint in accordance with the Federal Rules of Civil 21 Procedure. The following briefing schedule shall govern dispositive motions in this action: 22 a. No later than sixty (60) days from the date the answer is due, Defendant 23 shall file a motion for summary judgment or other dispositive motion. The motion must be 24 supported by adequate factual documentation, must conform in all respects to Federal Rule of 25 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 26 the events at issue. A motion for summary judgment also must be accompanied by a Rand3 notice 27 1 so that Plaintiff will have fair, timely and adequate notice of what is required of him in order to 2 oppose the motion. Woods v. Carey,

(9th Cir. 2012) (notice requirement set out 3 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 4 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 5 However, the court notes that under the new law of the circuit, in the rare event that a failure to 6 exhaust is clear on the face of the complaint, Defendant may move for dismissal under Rule 7 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. 8 Albino v. Baca,

(9th Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315

, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative 10 remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a 11 defendant as an unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on 12 the face of the complaint, Defendant must produce evidence proving failure to exhaust in a motion 13 for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most 14 favorable to Plaintiff shows a failure to exhaust, Defendant is entitled to summary judgment under 15 Rule 56. Id. But if material facts are disputed, summary judgment should be denied and the 16 district judge rather than a jury should determine the facts in a preliminary proceeding. Id. at 17 1168. 18 If Defendant is of the opinion that this case cannot be resolved by summary judgment, 19 Defendant shall so inform the court prior to the date the summary judgment motion is due. All 20 papers filed with the court shall be promptly served on Plaintiff. 21 b. Plaintiff’s opposition to the dispositive motion shall be filed with the court 22 and served on Defendant no later than twenty-eight (28) days after the date on which Defendant’s 23 motion is filed. 24 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 25 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 26 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 27 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 1 entitled to judgment as a matter of law, which will end your case. When a party you are suing 2 makes a motion for summary judgment that is properly supported by declarations (or other sworn 3 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 4 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 5 as provided in Rule 56(e), that contradicts the facts shown in the defendant’s declarations and 6 documents and show that there is a genuine issue of material fact for trial. If you do not submit 7 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 8 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 9 F.3d at 962-63. 10 Plaintiff also is advised that—in the rare event that Defendant argues that the failure to 11 exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available 12 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 13 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 14 exhaust your available administrative remedies before coming to federal court. Such evidence 15 may include: (1) declarations, which are statements signed under penalty of perjury by you or 16 others who have personal knowledge of relevant matters; (2) authenticated documents— 17 documents accompanied by a declaration showing where they came from and why they are 18 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 19 in your complaint insofar as they were made under penalty of perjury and they show that you have 20 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 21 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 22 motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed 23 issues of fact with regard to this portion of the case. Albino,

. 24 (The notices above do not excuse Defendant’s obligation to serve similar notices again 25 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 26 motions for summary judgment. Woods,

.) 27 d. Defendant shall file a reply brief no later than fourteen (14) days after the 1 e. The motion shall be deemed submitted as of the date the reply brief is due. 2 No hearing will be held on the motion unless the court so orders at a later date. 3 5. Discovery may be taken in this action in accordance with the Federal Rules of Civil 4 Procedure. Leave of the court pursuant to Rule 30(a)(2) is hereby granted to Defendant to depose 5 Plaintiff and any other necessary witnesses confined in prison. 6 6. All communications by Plaintiff with the court must be served on Defendant or 7 Defendant’s counsel, once counsel has been designated, by mailing a true copy of the document to 8 them. 9 7. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 10 informed of any change of address and must comply with the court’s orders in a timely fashion. 11 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 12 while an action is pending must promptly file a notice of change of address specifying the new 13 address. See L.R. 3-11(a). The court may dismiss without prejudice a complaint when: (1) mail 14 directed to the pro se party by the court has been returned to the court as not deliverable, and 15 (2)the court fails to receive within sixty days of this return a written communication from the pro 16 se party indicating a current address. See L.R. 3-11(b). 17 8. Upon a showing of good cause, requests for a reasonable extension of time will be 18 granted provided they are filed on or before the deadline they seek to extend. 19 IT IS SO ORDERED. 20 Dated: June 13, 2025 21 ______________________________________ DONNA M. RYU 22 Chief Magistrate Judge 23 24 25 26 27