Brown

1

2

3 UNITED STATES DISTRICT COURT

4 NORTHERN DISTRICT OF CALIFORNIA

5

6 PATRICK BROWN, K77441, Case No. 26-cv-01732-CRB (PR)

7 Plaintiff, ORDER OF SERVICE

8 v. (ECF No. 7)

9 EFRAIN GONZALEZ,

10 Defendant(s).

11 Plaintiff Patrick Brown, a state prisoner at the Correctional Training Facility (CTF) in

12 Soledad, California, has filed a pro se First Amended Complaint under 42 U.S.C. § 1983 alleging

13 that defendant Efrain Gonzalez, a Prison Industry Authority (PIA) employee at CTF, subjected

14 plaintiff to “unnecessary/excessive use of force and discrimination on July 16, 2025.” ECF No. 7

15 (FAC) at 7.

16 DISCUSSION

17 A. Standard of Review

18 Federal courts must engage in a preliminary screening of cases in which prisoners seek

19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §

20 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of

21 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief

22 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id.

23 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901

24 F.2d 696, 699 (9th Cir. 1990).

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

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

27 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.

1 B. Legal Claims

2 Plaintiff alleges that defendant subjected him to “unnecessary/excessive use of force” and

3 “discrimination” when on July 16, 2025, defendant approached plaintiff without any warning

4 and/or justification and “violently grabbed a bottle of mug rootbe[e]r soda” out of plaintiff’s hand

5 “with extreme force,” and turned to other prisoners and said, “‘This is how I treat my whores!’”

6 ECF No. 7 at 7 (emphasis in original). Plaintiff claims he was targeted by defendant unnecessarily

7 and because plaintiff “is identified as a gay incarcerated person,” as evidenced by defendant’s “my

8 whores” comment and telling other prisoners as plaintiff walked by about an hour later, “‘I’ve got

9 to use my soft skills for this one (referring to [p]laintiff being gay)!’” Id. at 7, 8 (emphasis in

10 original).

11 Whenever prison officials stand accused of using excessive force in violation of the Eighth

12 Amendment, the core judicial inquiry is whether force was applied in a good-faith effort to

13 maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson v.

14 McMillian, 503 U.S. 1, 6-7 (1992). In determining whether the use of force was for the purpose of

15 maintaining or restoring discipline, or for the malicious and sadistic purpose of causing harm, a

16 court may evaluate the need for application of force, the relationship between that need and the

17 amount of force used, the extent of any injury inflicted, the threat reasonably perceived by the

18 responsible officials, and any efforts made to temper the severity of a forceful response. Id. at 7.

19 But not every malevolent touch or other use of force by a correctional officer gives rise to

20 a federal cause of action. Id. at 9. The Eighth Amendment’s prohibition of cruel and unusual

21 punishment necessarily excludes from constitutional recognition de minimis uses of physical

22 force, provided that the use of force is not of a sort repugnant to the conscience of mankind. Id. A

23 prisoner who complains of a push or shove or other de minimis use of force that causes no

24 discernable injury almost certainly fails to state a valid excessive force claim. Id.

25 In its screening order of plaintiff’s original complaint, the court explained that plaintiff’s

26 allegations that without warning or justification defendant violently grabbed a bottle of soda from

27 plaintiff’s hand “suggest no more than a de minimis use of force by defendant insufficient to state

1 allegation that defendant “grabbed the bottle ‘with extreme force’ does not compel a different

2 conclusion.” ECF No. 5 (Apr. 22, 2026, Order) at 2 (citing Hudson, 503 U.S. at 9). But in an

3 abundance of caution, plaintiff was afforded an opportunity to amend “to set forth specific

4 allegations showing that the force used by defendant was more than de minimis, if possible.” Id.

5 Plaintiff therefore now adds in the FAC that the force used by defendant to grab the can of soda

6 out of plaintiff’s hand caused plaintiff “sharp pain” in his wrist for which he had to take Ibuprofen

7 for several days and that he was so shaken up by the incident that he had to seek “mental health

8 therapy.” ECF No. 7 at 4, 5. Although unfortunate, plaintiff’s alleged wrist pain and emotional

9 distress from defendant violently grabbing a bottle of soda from plaintiff’s hand still suggest no

10 more than a de minimis use of force by defendant insufficient to state a valid excessive force claim

11 under the Eighth Amendment. See Hudson, 503 U.S. at 9 (de minimis use of force that causes no

12 discernable injury generally fails to state valid excessive force claim ); see also 42 U.S.C. §

13 1997e(e) (no federal action may be brought by prisoner for mental or emotional injury suffered

14 while in custody without showing of physical injury). Plaintiff’s allegations of excessive use of

15 force are dismissed for failure to state a claim under § 1983.

16 But liberally construed, plaintiff’s allegations that defendant discriminated against/targeted

17 plaintiff because plaintiff is an openly gay prisoner appear to state an arguably cognizable § 1983

18 claim against defendant for intentional denial of equal protection. See Romer v. Evans, 517 U.S.

19 620, 631-36 (1996) (recognized class of “gays and lesbians” is protected from discrimination by

20 Equal Protection Clause of 14th Amendment).

21 CONCLUSION

22 For the foregoing reasons and for good cause shown,

23 1. The following defendant(s) shall be served:

24 a. Efrain Gonzalez, PIA, at CTF.

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

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

27 in CDCR custody. In accordance with the program, the clerk is directed to serve on CDCR via

1 Report of E-Service Waiver form and a summons. The clerk also shall serve a copy of this order

2 on the plaintiff.

3 No later than 40 days after service of this order via email on CDCR, CDCR shall file with

4 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s)

5 listed in this order will be waiving service of process without the need for service by the United

6 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be

7 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the

8 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of

9 service of process for the defendant(s) who are waiving service.

10 Upon the filing of the CDCR Report of E-Service Waiver, the clerk shall prepare for each

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

12 USM-285 Form. The clerk shall provide to the USMS the completed USM-285 forms and copies

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

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

15 Service Waiver.

16 2. In order to expedite the resolution of this case, the court orders as follows:

17 a. No later than 90 days from the date of this order, defendants shall serve and

18 file a motion for summary judgment or other dispositive motion. A motion for summary judgment

19 must be supported by adequate factual documentation and must conform in all respects to Federal

20 Rule of Civil Procedure 56, and must include as exhibits all records and incident reports stemming

21 from the events at issue. A motion for summary judgment also must be accompanied by a Rand

22 notice so that plaintiff will have fair, timely and adequate notice of what is required of him in

23 order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice

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

25 concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust

26 available administrative remedies (where such a motion, rather than a motion for summary

27 judgment for failure to exhaust, is appropriate) must be accompanied by a similar notice. Stratton

1 in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v.

2 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with motion to

3 dismiss for failure to exhaust available administrative remedies).

4 If defendants are of the opinion that this case cannot be resolved by summary judgment or

5 other dispositive motion, they shall so inform the court prior to the date their motion is due. All

6 papers filed with the court shall be served promptly on plaintiff.

7 b. Plaintiff must serve and file an opposition or statement of non-opposition to

8 the dispositive motion not more than 28 days after the motion is served and filed.

9 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of

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

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

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

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

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

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

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

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

18 as provided in [current Rule 56(c)], that contradicts the facts shown in the defendant’s declarations

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

20 submit your own evidence in opposition, summary judgment, if appropriate, may be entered

21 against you. If summary judgment is granted, your case will be dismissed and there will be no

22 trial. Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).

23 Plaintiff also is advised that a motion to dismiss for failure to exhaust available

24 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without

25 prejudice. You must “develop a record” and present it in your opposition in order to dispute any

26 “factual record” presented by the defendants in their motion to dismiss. Wyatt v. Terhune, 315

27 F.3d 1108, 1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show that you

] may include: (1) declarations, which are statements signed under penalty of perjury by you or

2 || others who have personal knowledge of relevant matters; (2) authenticated documents —

3 documents accompanied by a declaration showing where they came from and why they are

4 || authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements

5 in your complaint insofar as they were made under penalty of perjury and they show that you have

6 || personal knowledge of the matters state therein. In considering a motion to dismiss for failure to

7 || exhaust, the court can decide disputed issues of fact with regard to this portion of the case.

8 || Stratton, 697 F.3d at 1008-09.

9 (The Rand and Wyatt/Stratton notices above do not excuse defendants’ obligation to serve

10 || said notices again concurrently with motions to dismiss for failure to exhaust available

11 administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.)

12 d. Defendants must serve and file a reply to an opposition not more than 14

13 days after the opposition is served and filed.

14 e. The motion shall be deemed submitted as of the date the reply is due. No

3 15 || hearing will be held on the motion unless the court so orders at a later date.

16 3. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

i 17 || No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required

Zz 18 || before the parties may conduct discovery.

19 4. All communications by plaintiff with the court must be served on defendants, or

20 || defendants’ counsel once counsel has been designated, by mailing a true copy of the document to

21 defendants or defendants’ counsel.

22 5. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the court

23 and all parties informed of any change of address and must comply with the court’s orders in a

24 || timely fashion. Failure to do so may result in the dismissal of this action pursuant to Rule 41(b).

25 IT ISSO ORDERED.

26 Dated: July 28, 2026

27 x

CHARLES R. BREYER

28 United States District Judge