Jackson v. Taylor ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ARTHUR D. JACKSON, H40738, Case No. 21-cv-03660-SK (PR) 8 Plaintiff, ORDER OF SERVICE 9 v. 10 MATTHEW TAYLOR, et al., 11 Defendant(s). 12 Plaintiff, a prisoner at San Quentin State Prison (SQSP), has filed a pro se civil rights 13 complaint under 42 U.S.C. § 1983 alleging that on December 7, 2019, during a pat-down search of 14 Plaintiff by correctional officers Matthew Taylor and Todan Ascensio, Taylor grabbed Plaintiff’s 15 penis and scrotum “squeezing them in the palm of his hand for approximately 15-to-20 seconds, 16 and refusing to let go of Plaintiff’s penis and scrotum even after Plaintiff removed [Taylor’s] hand 17 and made several demands to release the hold [Taylor] had on Plaintiff’s penis and scrotum.” 18 Compl. (ECF No.1) at 6. Plaintiff further alleges that Ascensio stood by without intervening, and that after Plaintiff told the officers that he would be filing a sexual assault complaint Taylor 19 retaliated against Plaintiff by filing a misconduct report against him and Taylor and Ascensio 20 further retaliated against Plaintiff by conducting a lengthy retaliatory cell search that “left 21 Plaintiff’s cell in total disarray.” Id. at 8. 22 The complaint is properly before the undersigned for preliminary screening because 23 plaintiff has consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). 24 DISCUSSION 25 A. Standard of Review 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 1 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of 2 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 3 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 4 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 5 F.2d 696, 699 (9th Cir. 1990). 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 9 42, 48 (1988). 10 B. Legal Claims 11 It is well established that “[s]exual harassment or abuse of an inmate by a corrections 12 officer is a violation of the Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 1046 (9th 13 Cir. 2012) (citations omitted). In evaluating a prisoner’s claim of sexual harassment or abuse, 14 courts consider whether “the officials act[ed] with a sufficiently culpable state of mind” and if the 15 alleged wrongdoing was objectively “harmful enough” to establish a constitutional violation. Id. 16 (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). Liberally construed, Plaintiff’s allegations 17 that Taylor grabbed and squeezed Plaintiff’s penis and scrotum for 15 to 20 seconds despite 18 Plaintiff removing Taylor’s hand and making several demands that Taylor release his hold, while 19 Ascensio stood by without intervening, arguably state a § 1983 claim for violation of the Eighth 20 Amendment against Taylor and Ascensio. See id.; see also Robins v. Meecham, 60 F.3d 1436, 21 1442 (9th Cir. 1995) (prison official’s failure to intervene to prevent 8th Amendment violation 22 may be basis for liability). 23 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 24 elements: (1) An assertion that a state actor took some adverse action against an inmate 25 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 26 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 27 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 1 sexual assault complaint Taylor retaliated against Plaintiff by filing a misconduct report against 2 him and Taylor and Ascensio further retaliated against Plaintiff by conducting a lengthy cell 3 search that left Plaintiff’s cell in total disarray arguably state § 1983 retaliation claims against 4 Taylor and Ascensio. See id.; see also Entler v. Gregoire, 872 F.3d 1031, 1034, 1038-40 (9th Cir. 5 2017) (prisoner cannot be retaliated against for making threats to sue, written or verbal, because 6 threats to sue “fall within the purview of the constitutionally protected right to file grievances”). 7 CONCLUSION 8 For the foregoing reasons and for good cause shown, 9 1. The following defendant(s) shall be served: Correctional Officers Matthew Taylor 10 and Todan Ascensio at SQSP. 11 Service on the listed defendant(s) shall proceed under the California Department of 12 Corrections and Rehabilitation’s (CDCR) e-service pilot program for civil rights cases from 13 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve on 14 CDCR via email the following documents: the operative complaint, this order of service, the 15 notice of assignment of prisoner case to a United States magistrate judge and accompanying 16 magistrate judge jurisdiction consent or declination to consent form, a CDCR Report of E-Service 17 Waiver form and a summons. The clerk shall serve by mail a copy of this order on the plaintiff. 18 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 19 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 20 listed in this order will be waiving service of process without the need for service by the United 21 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 22 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver and of the 23 notice of assignment of prisoner case to a magistrate judge and accompanying magistrate judge 24 jurisdiction consent or declination to consent form to the California Attorney General’s Office, 25 which, within 21 days, shall file with the court a waiver of service of process for the defendant(s) 26 who are waiving service and, within 28 days thereafter, shall file a magistrate judge jurisdiction 27 consent or declination to consent form as to the 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 2. In order to expedite the resolution of this case, the court orders as follows: 8 a. No later than 90 days from the date of this order, defendants shall serve and 9 file a motion for summary judgment or other dispositive motion. A motion for summary judgment 10 must be supported by adequate factual documentation and must conform in all respects to Federal 11 Rule of Civil Procedure 56, and must include as exhibits all records and incident reports stemming 12 from the events at issue. A motion for summary judgment also must be accompanied by a Rand 13 notice so that plaintiff will have fair, timely and adequate notice of what is required of him in 14 order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice 15 requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served 16 concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust 17 available administrative remedies (where such a motion, rather than a motion for summary 18 judgment for failure to exhaust, is appropriate) must be accompanied by a similar notice. Stratton 19 v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out 20 in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. 21 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with motion to 22 dismiss for failure to exhaust available administrative remedies). 23 If defendants are of the opinion that this case cannot be resolved by summary judgment or 24 other dispositive motion, they shall so inform the court prior to the date their motion is due. All 25 papers filed with the court shall be served promptly on plaintiff. 26 b. Plaintiff must serve and file an opposition or statement of non-opposition to 27 the dispositive motion not more than 28 days after the motion is served and filed. 1 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 2 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 3 be granted when there is no genuine issue of material fact – that is, if there is no real dispute about 4 any fact that would affect the result of your case, the party who asked for summary judgment is 5 entitled to judgment as a matter of law, which will end your case. When a party you are suing 6 makes a motion for summary judgment that is properly supported by declarations (or other sworn 7 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 8 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 9 as provided in [current Rule 56(c)], that contradicts the facts shown in the defendant’s declarations 10 and documents and show that there is a genuine issue of material fact for trial. If you do not 11 submit your own evidence in opposition, summary judgment, if appropriate, may be entered 12 against you. If summary judgment is granted, your case will be dismissed and there will be no 13 trial. Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A). 14 Plaintiff also is advised that a motion to dismiss for failure to exhaust available 15 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 16 prejudice. You must “develop a record” and present it in your opposition in order to dispute any 17 “factual record” presented by the defendants in their motion to dismiss. Wyatt v. Terhune, 315 18 F.3d 1108, 1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show that you 19 did exhaust your available administrative remedies before coming to federal court. Such evidence 20 may include: (1) declarations, which are statements signed under penalty of perjury by you or 21 others who have personal knowledge of relevant matters; (2) authenticated documents – 22 documents accompanied by a declaration showing where they came from and why they are 23 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 24 in your complaint insofar as they were made under penalty of perjury and they show that you have 25 personal knowledge of the matters state therein. In considering a motion to dismiss for failure to 26 exhaust, the court can decide disputed issues of fact with regard to this portion of the case. 27 Stratton, 697 F.3d at 1008-09. 1 said notices again concurrently with motions to dismiss for failure to exhaust available 2 administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.) 3 d. Defendants must serve and file a reply to an opposition not more than 14 4 || days after the opposition is served and filed. 5 e. The motion shall be deemed submitted as of the date the reply is due. No 6 || hearing will be held on the motion unless the court so orders at a later date. 7 3. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 8 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 9 || before the parties may conduct discovery. 10 4. All communications by plaintiff with the court must be served on defendants, or 11 defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 12 defendants or defendants’ counsel. 5 13 5. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the court 14 || and all parties informed of any change of address and must comply with the court’s orders in a 3 15 timely fashion. Failure to do so may result in the dismissal of this action pursuant to Federal Rule 16 || of Civil Procedure 41(b). IT IS SO ORDERED. |) Dated: June 9, 2021 . . 19 A Gs rr [ww SALLIE KIM 20 United States Magistrate Judge 21 22 23 24 25 26 27 28