Nieto v. Allison

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 MICHAEL NIETO, Case No. 22-cv-06983-JST

8 Plaintiff,

ORDER OF PARTIAL SERVICE;

9 v. DISMISSING CERTAIN CLAIMS

WITH LEAVE TO AMEND

10 KATHLEEN ALLISON, et al.,

Defendants.

11

12

13 Plaintiff, an inmate at California State Prison - Solano, has filed a pro se action pursuant to

14 42 U.S.C. § 1983, regarding events that occurred at Correctional Training Facility (“CTF”) in

15 Soledad, California, where he was previously housed. Now before the Court for review under 28

16 U.S.C. § 1915A is Plaintiff’s complaint, ECF No. 1. Plaintiff has been granted leave to proceed in

17 forma pauperis in a separate order.

18 DISCUSSION

19 A. Standard of Review

20 A federal court must conduct a preliminary screening in any case in which a prisoner seeks

21 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

22 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims

23 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek

24 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),

25 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d

26 989, 993 (9th Cir. 2020).

27 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

1 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the

2 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

3 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned,

4 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).

5 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a

6 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id.

7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a

8 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged

9 violation was committed by a person acting under the color of state law. See West v. Atkins, 487

10 U.S. 42, 48 (1988).

11 B. Complaint

12 The complaint names as defendants California Department of Corrections and

13 Rehabilitation (“CDCR”) Secretary Kathleen Allison, Salinas Valley State Prison Warden Trent

14 Allen, and the following CTF prison officials: Warden Hernandez, Institutional Gang

15 Investigations (“IGI”) Sergeant J. Peefley, former Warden Koenig, ISU Officer Z. Brown,

16 ISU/IGI Officer Orozco, Captain K. Binning, Appeals Coordinator R. Monroy, C-Wing Officer

17 Pequino, C-Wing Officer Alvarez, ISU Sergeant Vera, B-Wing Officer Levine, B-Wing Officer

18 Aceves, B-Wing Officer G. Nagma, B-Wing Officer Jiminez, Sergeant Perez, Search & Escort

19 Officer T. Taylor, Search & Escort Officer Singh, Sergeant/Lieutenant M. Magallon, Captain

20 Handley, Senior Hearing Officer/Sergeant D. McDonald, Associate Warden K. Green, Associate

21 Warden A. Vasquez, Cadet Tour John Does 1-9, and John Does 10-12. However, the complaint

22 makes no factual allegations regarding Defendants Hernandez, Koenig, or Vera. And in the body

23 of the complaint, the complaint names the following additional defendants: Diaz, Wilson, Padilla,

24 and Flores.

25 The complaint alleges three causes of action.

26 1. First Cause of Action

27 A) Factual Allegations

1 Defendant Peefley sexually harassed Plaintiff when, during a body search, Defendant Peefley

2 reached into Plaintiff’s shorts and boxers; grabbed Plaintiff’s penis and testicles and squeezed

3 them while laughing, saying “We got a real gang member right here;” and then forcefully pulled

4 Plaintiff’s shorts down, exposing Plaintiff’s genitals to everyone. Defendants Brown and Orzoco

5 and John Does 1-9 Cadets witnessed the sexual harassment, did nothing to stop it, and did not

6 report it. Defendants Binning, Diaz, Green, and Allison are liable for Defendant Peefley’s sexual

7 assault because it was a result of their failure to adequately supervise their subordinates.

8 Defendant Wilson knew of the violation and failed to report it. ECF No. 1 at 4-6.

9 Immediately following the sexual assault, Defendant Peefley walked Plaintiff to a mural he

10 had painted and asked if Plaintiff had painted an Aztec13 gang symbol in the mural; accused

11 Plaintiff of trying to show his loyalty to La Raza; and told Plaintiff that he would write Plaintiff up

12 for destroying state property, that he would affix the STG designation to Plaintiff and that Plaintiff

13 would have to pay for the paint to cover the mural. Plaintiff is a Mexican inmate who has been

14 validated as a gang member by the prison classification system, but has never committed any

15 gang-related activities in CTF. ECF No. 1 at 7-8.

16 Defendant Brown issued Plaintiff a rules violation report, CDC Form 115 (“RVR”), for the

17 alleged gang symbol, even though Defendant Brown had never spoken to Plaintiff. Although the

18 RVR stated that an investigation had been conducted, no one interviewed D. Ratliff, the other

19 inmate involved in conceptualizing, planning, and painting the mural. Inmate Ratliff is African-

20 American and was the person who outlined the heart in white. The failure to investigate the RVR

21 shows that the RVR was “simply racially motivated, bias, and discriminatory.” Plaintiff was

22 targeted simply because he is a validated Mexican inmate. ECF No. 1 at 9.

23 B) Legal Claims

24 The first cause of action alleges that these actions and inactions violated Plaintiff’s Eighth

25 Amendment right to be free from cruel and unusual punishment and Plaintiff’s right to due process

26 and equal protection under the Fourteenth Amendment.

27 The allegation that Defendant Peefley sexually harassed or assaulted Plaintiff states a

1 1130, 1144 (9th Cir. 2020) (“A prisoner presents a viable Eighth Amendment claim where he or

2 she proves that a prison staff member, acting under color of law and without legitimate

3 penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual

4 conduct for the staff member’s own sexual gratification, or for the purpose of humiliating,

5 degrading, or demeaning the prisoner.”).

6 However, the allegations regarding the alleged sexual assault do not state an Eighth

7 Amendment claim against Defendants Brown, Orzoco, Wilson, Binning, Diaz, Green, Allison, and

8 John Does Cadets 1-9 because these defendants did not sexually assault Plaintiff or otherwise

9 cause the alleged sexual assault. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) “(A person

10 deprives another of a constitutional right, within the meaning of section 1983, if he does an

11 affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is

12 legally required to do that causes the deprivation of which the plaintiff complains.”) (internal

13 quotation marks and citation omitted; emphasis in original); see also id. (“The inquiry into

14 causation must be individualized and focus on the duties and responsibilities of each individual

15 defendant whose acts or omissions are alleged to have caused a constitutional deprivation.”). To

16 the extent that Plaintiff has named Binning, Diaz, Green, and Allison as defendants because they

17 are supervisors, Plaintiff is cautioned that there is no supervisory liability under Section 1983. See

18 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Knowledge and acquiescence of a

19 subordinate’s misconduct is insufficient to establish liability; each government official is only

20 responsible for his or her own misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). To

21 state a claim for relief under Section 1983 based on a theory of supervisory liability, Plaintiff must

22 allege some facts that would support a claim that (1) the supervisor(s) proximately caused the

23 deprivation of rights of which Plaintiff complains, see Harris v. City of Roseburg, 664 F.2d 1121,

24 1125 (9th Cir. 1981); or (2) the supervisor(s) failed to properly train or supervise personnel

25 resulting in the alleged deprivation, Ybarra v. Reno Thunderbird Mobile Home Village, 723 F. 2d

26 675, 680 (9th Cir. 1984); (3) the alleged deprivation resulted from a custom or policy for which

27 each of the supervisor(s) was or were responsible, see id.; or (4) the supervisor(s) knew of the

1 formulaic recitation of the elements of supervisory liability fails to state a claim under Section

2 1983, as does a conclusory statement of “failure-to-supervise.”

3 The allegations in the first cause of action do not state a cognizable due process claim

4 because these incidents did not effect a change in Plaintiff’s prison conditions so severe as to

5 affect his sentence in an unexpected manner and did not subject Plaintiff to an atypical and

6 significant hardship in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515

7 U.S. 472, 484 (1995) (due process clause implicated when correctional officer’s action causes a

8 change in conditions so severe as to affect inmate’s sentence in an unexpected manner, results in

9 restraint that imposes “atypical and significant hardship on the inmate in relation to the ordinary

10 incidents of prison life,” or has inevitable effect on duration of sentence).

11 The allegations in the first cause of action does not state a cognizable equal protection

12 claim because there is no allegation that Plaintiff was treated differently from other similarly

13 situated persons. Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1026 (9th Cir.

14 1998) (plaintiff alleging denial of equal protection under 42 U.S.C. § 1983 based on race or other

15 suspect classification must plead intentional unlawful discrimination or allege facts at least

16 susceptible of inference of discriminatory intent); see also Furnace v. Sullivan, 705 F.3d 1021,

17 1030 (9th Cir. 2013) (to state equal protection claim, plaintiff must allege that defendant state

18 actor acted at least in part because of plaintiff’s membership in protected class). Defendant

19 Peefley’s sexual assault was not motivated by Plaintiff’s membership in a protected class. Nor did

20 the false accusation constitute differential treatment. Discriminatory intent cannot be inferred

21 from the failure to issue inmate Ratliff an RVR because, while inmate Ratliff also designed and

22 painted the mural, there is no allegation that the mural contained a gang symbol related to an

23 African-American gang.

24 In summary, with respect to the first cause of action, the Court finds that the complaint’s

25 allegation that Defendant Peefley sexually assaulted or harassed Plaintiff on April 28, 2021, states

26 a cognizable Eighth Amendment allegation. The Court dismisses the remainder of this cause of

27 action with leave to amend.

1 2. Second Cause of Action

2 A) Factual Allegations

3 The second cause of action makes the following factual allegations.

4 Plaintiff reported the alleged sexual assault to the Monterey Rape and Crisis Center on

5 both April 28, 2021 and May 1, 202. An advocate from the center called the prison soon

6 thereafter. Plaintiff also filed a grievance regarding the sexual assault on April 30, 2021; filed a

7 Prison Rape Elimination Act (“PREA”) complaint; and reported the sexual assault to Defendant

8 Padilla on May 7, 2021. ECF No. 1 at 8, 11.

9 Prison officials retaliated against Plaintiff for reporting the sexual assault as follows.

10 • Plaintiff was moved twice after filing his PREA complaint.

11 • The power in Plaintiff’s cell was cut off at midnight even though he uses a CPAP

breathing machine and a “DO NOT TURN OFF” sign is posted next to the power

12 breaker switch.

13 • On April 30, 2021, Defendants Pequino and Alvarez denied Plaintiff’s requests to

see mental health, even though Plaintiff informed them that he was in a mental

14 health crisis. On May 8, 2021, Defendants Pequino and Alvarez refused to release

Plaintiff to Mental Health and Plaintiff’s clinician had to physically walk to

15 Plaintiff’s dorm to get Plaintiff out.

16 • On May 1, 2021, Defendant Wilson served a rules violation report on Plaintiff.

17 • Defendant McDonald found Plaintiff guilty of an RVR authored by Plaintiff’s

abuser, Defendant Peefley.

18

• Plaintiff suspects that after he reported the sexual assault to Defendant Padilla on

19 May 7, 2021, Defendant Padilla may have violated Plaintiff’s confidentiality by

informing five other correctional officials of the sexual assault.

20

• On May 27, 2021, Defendant Perez opened Plaintiff’s cell door and said, “Who’s

21 Nieto? Whatever happened in the hallway, you better remember it was an accident,

or, sabes,”1 clearly urging Plaintiff to drop the sexual assault claim. Plaintiff filed a

22 grievance against Perez that same day. Defendant appeals coordinator Monray did

not process this grievance.

23

• Prison officials conspired to cover up the sexual assault at the administrative level

24 in the following manner. Defendant Monray screened out the PREA complaint;

Defendants Bining, Diaz, Wilson, Orozco, Peefley and Brown refused to follow the

25 PREA guidelines after receiving notice of Plaintiff’s sexual assault claim on May

31, 2021; and Defendant Associate Warden Vasquez illegally denied the PREA

26 complaint.

27

• Defendants Levine and Aceves moved Plaintiff to gym on the pretext that Plaintiff

1 was COVID positive. Plaintiff informed them that he suffered from hypertension

and used a CPAP and therefore required access to a power outlet and to be

2 separated from symptomatic inmates. Despite promised to accommodate

Plaintiff’s needs, but Defendants Levine and Aceves never relocated Plaintiff or

3 granted him access to his CPAP machine. Plaintiff filed a grievance against

Defendants Levine and Aceves and his power was turned off in retaliation. ECF

4 No. 1 at 11-12.

5 ECF No. 1 at 11-12.

6 B) Legal Claims

7 For the second cause of action, in answering what constitution or other federal civil right

8 was violated, Plaintiff writes: “First Amendment, Eighth Amendment, and Fourteenth

9 Amendment.” However, the supporting facts do not directly reference these amendments, only

10 stating that Plaintiff was subject to retaliation. As explained below, the Court finds that, with

11 respect to the second cause of action, the Court finds that the second cause of action states a

12 cognizable First Amendment retaliation claim against Defendant Perez. The Court dismisses the

13 remainder of this cause of action with leave to amend.

14 1) First Amendment Claim - Retaliation

15 The second cause of action’s allegations that, on May 27, 2021, Defendant Perez opened

16 Plaintiff’s cell door, asked for Plaintiff by name, and told Plaintiff to remember that the hallway

17 incident was an accident, implying that Plaintiff should drop the sexual assault claim, states a

18 cognizable First Amendment retaliation claim. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

19 Cir. 2005) (“Within the prison context, a viable claim of First Amendment retaliation entails five

20 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

21 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

22 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

23 correctional goal.”) (footnote omitted).

24 The remaining allegations, however, do not state First Amendment retaliation claims for

25 the following reasons.

26 With respect to the allegation that Plaintiff was moved twice after his PREA complaint and

27 that his power was cut off one night, Plaintiff does not identify which defendant(s) moved him or

1 With respect to the allegations that Defendants Pequino and Alvarez denied Plaintiff’s

2 requests to see mental health and refused to release him for a mental health appointment, that

3 Defendant Wilson served Plaintiff with an RVR, that Defendant McDonald found Plaintiff guilty

4 of an RVR authored by his abuser, and that Defendants Levine and Aceves moved Plaintiff to the

5 gym and failed to accommodate his needs, there is no allegation that these defendants knew of

6 Plaintiff’s protected activity, much less any factual allegation from which it can be inferred that

7 these defendants’ actions were because of Plaintiff’s protected activity. Because these defendants

8 were not involved in the alleged sexual assault, the proximity in time between the alleged sexual

9 assault and their actions are insufficient to state a First Amendment retaliation claim.

10 The allegation that Defendants Levine and Aceves cut off Plaintiff’s power in retaliation

11 for Plaintiff filing a grievance may state a claim for First Amendment retaliation. However, it is

12 unclear when Plaintiff was moved to the gym by Defendants Levine and Aceves, when Plaintiff

13 filed the complaint against Defendants Levine and Aceves, and when Plaintiff’s power was cut

14 off. If Plaintiff was housed in the gym, it is unclear how his power was cut off.

15 The allegation that Defendant Padilla may have violated Plaintiff’s confidentiality is based

16 solely on speculation and therefore fails to state a cognizable First Amendment retaliation claim.

17 The allegation that Defendants Monray, Bining, Diaz, Wilson, Orozco, Peefley, Brown,

18 and Vasquez mishandled the PREA complaint fails to state a cognizable First Amendment

19 retaliation claim because the supporting allegations are vague. Plaintiff alleges that Defendant

20 Monray improperly screened out his PREA complaint, but does not explain how the PREA

21 complaint was incorrectly screened out. Moreover, it appears that the PREA complaint was not

22 screened out, as it was received by Defendant Associate Warden Vasquez. It is also unclear what

23 PREA guidelines were not followed by Defendants Bining, Diaz, Wilson, Orozco, Peefley and

24 Brown. Finally, it is unclear how Defendant Vasquez’s denial of the PREA complaint was

25 “illegal.”

26 2) Eighth Amendment and Fourteenth Amendment Claim

27 Plaintiff has not identified how his rights under the Eighth Amendment or Fourteenth

1 unusual punishment in violation of the Eighth Amendment, he must explain how the alleged

2 retaliation constituted cruel and unusual punishment. Generally speaking, the cruel and unusual

3 punishment prohibited by the Eighth Amendment refers to the use of excessive force or the

4 deprivation of basic necessities. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (Eighth

5 Amendment places restraints on prison officials, who may not, for example, use excessive force

6 against prisoners); Farmer v. Brennan, 511 U.S. 825, 832 (1994) (Eighth Amendment requires

7 prison officials to provide prisoners with basic necessities of life such as food, clothing, shelter,

8 sanitation, medical care and personal safety). If Plaintiff is alleging that the alleged retaliation

9 violated his due process rights, that claim fails as a matter of law because Plaintiff’s challenges to

10 the alleged retaliation are covered by the First Amendment and therefore should be challenged

11 solely under the rubric of the First Amendment. United States v. Lanier, 520 U.S. 259, 272 n.7

12 (1997) (“if a constitutional claim is covered by a specific constitutional provision, such as the

13 Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that

14 specific provision, not under the rubric of substantive due process.”); see also Albright v. Oliver,

15 510 U.S. 266, 273 (1994) (plurality opinion) (“Where a particular Amendment ‘provides an

16 explicit textual source of constitutional protection’ against a particular sort of government

17 behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be

18 the guide for analyzing these claims.’”) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).

19 3. Third Cause of Action

20 The Court dismisses the third cause of action without prejudice because it violates the

21 joinder rule set forth in Fed. R. Civ. P. 20(a)(2). The third cause of action alleges that on March

22 11, 2022, Defendant Nagma gave Plaintiff a rules violation report authored by Defendant Jiminez

23 that falsely alleged that Plaintiff had refused another bed move; that when Plaintiff challenged the

24 RVR, Defendants Magallon, Taylor, and Singh used excessive force on him; that Defendant John

25 Doe 10 threatened Plaintiff when he said he wanted to report the excessive force and retaliation;

26 that Defendants John Does 10 and 11 refused to videotape his injuries; that Defendant Hendley

27 refused his request for a rules violation hearing and delayed filming Plaintiff’s injuries; and that

1 Perez, who had been employed at CTF and was now employed at SVSP, was threatening to

2 retaliate against Plaintiff. See generally ECF No. 1 at 17-18. Plaintiff’s claims against

3 Defendants Nagma, Jiminez, Magallon, Taylor, Singh, John Does 10 and 11, Hendley, and Allen

4 arise from a separate occurrence than the alleged April 28, 2021 sexual assault and the alleged

5 subsequent retaliation. Fed. R. Civ. P. 20(a)(2) provides that all persons “may be joined in one

6 action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the

7 alternative with respect to or arising out of the same transaction, occurrence, or series of

8 transactions or occurrences; and (B) any question of law or fact common to all defendants will

9 arise in the action.” Fed. R. Civ. P. 20(a)(2). The upshot of these rules is that “multiple claims

10 against a single party are fine, but Claim A against Defendant 1 should not be joined with

11 unrelated Claim B against Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

12 Plaintiff must file a separate action to pursue his claim regarding Officers Nagma, Jiminez,

13 Magallon, Taylor, Singh, John Does 10 and 11, Hendley, and Allen’s actions on March 11, 2022

14 and afterwards. Defendants Nagma, Jiminez, Magallon, Taylor, Singh, John Does 10 and 11,

15 Hendley, and Allen are DISMISSED from this action without prejudice to Plaintiff filing a

16 separate action against them.

17 CONCLUSION

18 For the reasons set forth above, the Court orders as follows.

19 1. The following defendant(s) shall be served: Correctional Training Facility

20 Correctional Sergeants J. Peefley and Perez.

21 Service on the listed defendant(s) shall proceed under the California Department of

22 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners

23 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the

24 CDCR via email the following documents: the operative complaint (ECF No. 1), this order of

25 service, a CDCR Report of E-Service Waiver form and a summons. The Clerk also shall serve a

26 copy of this order on the Plaintiff.

27 No later than 40 days after service of this order via email on the CDCR, the CDCR shall

1 defendant(s) listed in this order will be waiving service of process without the need for service by

2 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or

3 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service

4 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court

5 a waiver of service of process for the defendant(s) who are waiving service.

6 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each

7 defendant who has not waived service according to the CDCR Report of E-Service Waiver a

8 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies

9 of this order, the summons, and the operative complaint for service upon each defendant who has

10 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E-

11 Service Waiver.

12 2. The complaint’s allegation that Defendant Peefley sexually harassed or assaulted

13 Plaintiff states a cognizable Eighth Amendment claim against Defendant Peefley. The

14 complaint’s allegation that, on May 27, 2021, Defendant Perez opened Plaintiff’s cell door, asked

15 for Plaintiff by name, and told Plaintiff to remember that the hallway incident was an accident,

16 implying that Plaintiff should drop the sexual assault claim, states a cognizable First Amendment

17 retaliation claim against Defendant Perez.

18 3. The Court DISMISSES the third cause of action without prejudice because it

19 violates the joinder rule set forth in Fed. R. Civ. P. 20(a)(2), and DISMISSES Defendants Nagma,

20 Jiminez, Magallon, Taylor, Singh, John Does 10 and 11, Hendley, and Allen from this action

21 without prejudice to Plaintiff filing a separate action against them.

22 4. The Court dismisses the remainder of the complaint with leave to amend to address

23 the deficiencies identified above, if Plaintiff can truthfully do so. If Plaintiff wishes to file an

24 amended complaint, Plaintiff shall file an amended complaint within twenty-eight (28) days of the

25 date of this order that addresses the identified deficiencies. The amended complaint must include

26 the caption and civil case number used in this order, Case No. C 22-06893 JST (PR) and the words

27 “AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff must

1 completely replaces the previous complaints. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925

2 (9th Cir. 2012). Accordingly, Plaintiff must include in his amended complaint all the claims he

3 wishes to present and all of the defendants he wishes to sue, including the claims found cognizable

4 above and the defendants served above. Plaintiff may not incorporate material from the prior

5 complaint by reference. Failure to file an amended complaint in accordance with this order in the

6 time provided will result in ECF No. 1 remaining the operative complaint and this action

7 proceeding solely on the claims found cognizable above and the defendants ordered served above.

8 The Clerk shall include four copies of the court’s complaint form with a copy of this order to

9 Plaintiff.

10 5. In order to expedite the resolution of this case, the Court orders as follows:

11 a. No later than 91 days from the date this order is filed, Defendant(s) must

12 file and serve a motion for summary judgment or other dispositive motion. If Defendant(s) is(are)

13 of the opinion that this case cannot be resolved by summary judgment, Defendants must so inform

14 the Court prior to the date the motion is due. A motion for summary judgment also must be

15 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what

16 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir.

17 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be

18 served concurrently with motion for summary judgment).2

19 b. Plaintiff’s opposition to the summary judgment or other dispositive motion

20 must be filed with the Court and served upon Defendant(s) no later than 28 days from the date the

21 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment

22 provided later in this order as he prepares his opposition to any motion for summary judgment.

23 Defendant(s) shall file a reply brief no later than 14 days after the date the opposition is filed. The

24 motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on

25

2 If Defendant(s) assert(s) that Plaintiff failed to exhaust his available administrative remedies as

26

required by 42 U.S.C. § 1997e(a), Defendant(s) must raise such argument in a motion for

summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th

27

Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which

1 the motion.

2 6. Plaintiff is advised that a motion for summary judgment under Rule 56 of the

3 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must

4 do in order to oppose a motion for summary judgment. Generally, summary judgment must be

5 granted when there is no genuine issue of material fact – that is, if there is no real dispute about

6 any fact that would affect the result of your case, the party who asked for summary judgment is

7 entitled to judgment as a matter of law, which will end your case. When a party you are suing

8 makes a motion for summary judgment that is properly supported by declarations (or other sworn

9 testimony), you cannot simply rely on what your complaint says. Instead, you must set out

10 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents,

11 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and

12 documents and show that there is a genuine issue of material fact for trial. If you do not submit

13 your own evidence in opposition, summary judgment, if appropriate, may be entered against you.

14 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v.

15 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does

16 not excuse Defendants’ obligation to serve said notice again concurrently with a motion for

17 summary judgment. Woods, 684 F.3d at 939).

18 7. All communications by Plaintiff with the Court must be served on Defendants’

19 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard

20 any document which a party files but fails to send a copy of to his opponent. Until Defendants’

21 counsel has been designated, Plaintiff may mail a true copy of the document directly to

22 Defendants but once Defendants are represented by counsel, all documents must be mailed to

23 counsel rather than directly to Defendants.

24 8. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

25 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required

26 before the parties may conduct discovery.

27 9. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the

1 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

2 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every

3 pending case every time he is moved to a new facility.

4 10. Any motion for an extension of time must be filed no later than the deadline sought

5 to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that

6 || he must include the case name and case number for this case on any document he submits to the

7 Court for consideration in this case.

8 IT IS SO ORDERED.

®

9 Dated: August 8, 2023

10 JON S. TIGAR

11 nited States District Judge

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