Lucus v. Koenig ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JESSE LUCUS, 11 Case No. 19-07938 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING v. DEFENDANTS TO FILE 13 DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 CRAIG KOENIG, et al., MOTION; INSTRUCTIONS TO CLERK 15 Defendants. 16 17 18 Plaintiff,1 a former California inmate who has been paroled, filed the instant pro se 19 civil rights action pursuant to 42 U.S.C. § 1983 against CDCR officials and employees at 20 the Correctional Training Facility (“CTF”) where he was formerly incarcerated. The Court 21 dismissed the amended complaint, Dkt. No. 15, with leave to amend for Plaintiff to correct 22 deficiencies with respect to certain claims. Dkt. No. 17. In the alternative, the Court 23 advised that the matter would proceed solely on the claims found cognizable. Id. at 10-11. 24 The time for filing a second amended complaint has passed. Accordingly, this matter will 25 proceed solely on the cognizable claims discussed below. 26 /// 27 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 In the screening of the amended complaint, the Court stated the following: 16 Plaintiff claims that beginning in 2018, the CDCR began to convert 17 Sensitive Needs Yard (“SNY”) inmates to General Population (“GP”) at “Non-Designated Programming Facilities” (“NDPF”). Plaintiff claims this 18 plan was published in several memoranda by Defendant Kathleen Allison, the Director of the Division of Adult Institutions, and Secretary Ralph Diaz. 19 [Dkt. No. 15] at 2-3. Defendant Capt. Julie Garry was the designated point 20 of contact in Defendant Diaz’s memoranda. Id. at 3. Plaintiff was an SNY inmate. Id. at 4. 21 22 Plaintiff met with Defendant Laura Mendez, Correctional Counselor I, in early December 2018, to discuss his transfer to a NDPF. Id. at 3. 23 Plaintiff claims he agreed to a transfer to CRC Norco, but at the actual hearing on December 14, 2018, for which he waived his appearance, 24 Defendant Mendez placed him for a transfer to CTF’s Facility D. Id. 25 Plaintiff claims he was not advised of the change nor provided with a copy of the action that was taken, and therefore deprived of his right to due 26 process. Id. at 3-4. Then on December 20, 2018, he was informed by Facility D, and that Plaintiff had 10 minutes to gather his property. Id. at 4. 1 Because Plaintiff was aware that many other inmates who had been 2 transferred from Facility A to Facility D just the day before were being hurt, he requested protected administrative segregation (“ad-seg”). Id. 3 However, Defendant Stephens informed him that if he refused to be moved, she was supposed to issue him a Rules Violation Report (“RVR”) for 4 “refusing housing,” that he would be deemed a “program failure,” 5 transferred to a “Level III or IV” institution, and potentially lose good conduct credits. Id. Plaintiff claims he agreed to the transfer in order avoid 6 this “retaliation.” Id. at 4-5. He was moved to Facility D that same day. 7 Id. at 5. When he and several other inmates arrived at Facility D, staff informed them that there had been multiple incidents the day before and 8 there had been at least 10 physical altercations in the last three days of “converting.” Id. Defendant Warden Craig Koenig met with the inmates 9 that afternoon to discuss the situation. Id. at 5. Defendant Koenig repeated 10 the consequences for those who refused housing in Facility D: they would be issued an RVR, deemed “program failures,” and transferred to a higher 11 security level institution. Id. He agreed to house the new transfers from 12 Facility A together in Dorm 5, so they could protect one another and use bathrooms and showers with less fear, as well as assigning an additional 13 officer for protection. Id. at 6. 14 The next day on December 21, 2018, Plaintiff and 9 other inmates 15 were using the phones when they were rushed by a group of 28 attackers. Id. Plaintiff was kicked repeatedly by five inmates, and suffered injuries to 16 his head, face, neck, hands, and body. Id. He was also soaked with pepper 17 spray by Defendant John Doe 1 who arrived on the scene to quell the riot. Id. Plaintiff was taken to medical triage, and then to Natividad Hospital for 18 evaluation and treatment. Id. He was escorted by Defendant John Doe 2, who did not allow him a change of clothes or a chance to wash the spray off 19 his face or body. Id. At the hospital, he was diagnosed with a closed head 20 injury but no broken bones. Id. at 6-7. After he was returned to Facility D, he learned that several other inmates had suffered various injuries. Id. at 7. 21 Fearful for his life, Plaintiff refused to return to his housing and was placed in ad-seg. Id. Defendant John Doe 3 wrote on his ad-seg notice that the 22 reason for the placement was “refusing house/program on a non-designated 23 facility” due to “self-expressed” safety concerns, and that Plaintiff was involved in a riot. Id. Plaintiff claims that Defendant Jane Doe twice 24 refused to allow Plaintiff to decontaminate with a shower and get new 25 clothes. Id. Then at ad-seg, Defendant John Doe 4 gave him clothes that did not fit, forcing Plaintiff to wear his contaminated clothes, and denied 26 Plaintiff a shower. Id. Plaintiff was not allowed to shower until the next stated cognizable claims for failure to protect from other inmates against 1 Defendants Sgt. Stephens and Warden Craig Koenig, and excessive force 2 against Defendant John Doe 1. See Farmer v. Brennan, 511 U.S. 825, 832- 33 (1994); Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The denial of 3 showers by Defendants Jane Doe and John Doe 4 is also cognizable under § 1983 as a violation of the Eighth Amendment. See Toussaint v. McCarthy, 4 597 F. Supp. 1388, 1411 (N.D. Cal. 1984), aff'd in part and vacated in part, 5 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987); Toussaint v. Rushen, 553 F. Supp. 1365, 1385 (N.D. Cal. 1983), aff'd in 6 part and vacated in part, 722 F.2d 1490 (9th Cir. 1984); see also Shapley v. 7 Wolff, 568 F.2d 1310 (9th Cir. 1978). 8 Although the use of “John Doe” to identify a defendant is not favored in the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 9 (9th Cir. 1980); Wiltsie v. Cal. Dep't of Corrections, 406 F.2d 515, 518 (9th 10 Cir. 1968), situations may arise where the identity of alleged defendants cannot be known prior to the filing of a complaint. In such circumstances, 11 the plaintiff should be given an opportunity through discovery to identify 12 the unknown defendants, unless it is clear that discovery would not uncover their identities or that the complaint should be dismissed on other grounds. 13 See Gillespie, 629 F.2d at 642; Velasquez v. Senko, 643 F. Supp. 1172, 1180 (N.D. Cal. 1986). It is clear from the complaint that Plaintiff simply 14 needs basic discovery to obtain the names of Doe Defendants, i.e., John 15 Doe 1, John Doe 4, and Jane Doe. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). Plaintiff shall execute a reasonable discovery plan 16 and failure to do so may be grounds for a motion for judgment on the 17 pleadings or summary judgment. Accordingly, once named Defendants are served, Plaintiff must attempt to obtain the name of Doe Defendants 18 through discovery and then move to add their names and request that they be served. 19 20 Dkt. No. 17 at 2-5. Based on the foregoing, this action shall proceed against Defendants 21 Sgt. Stephens and Warden Craig Koenig on the failure to protect claim. With respect to the 22 excessive force claim and Eighth Amendment claims against John Doe 1, Jane Doe, and 23 John Doe 4, Plaintiff must provide the Court with the names of these Doe Defendants by 24 the date scheduled in this Order for any served Defendant to file a dispositive motion. 25 Failure to do so will result in the dismissal of these Doe Defendants without prejudice to 26 Plaintiff filing a new action against them. 1 CONCLUSION 2 For the reasons state above, the Court orders as follows: 3 1. Plaintiff has not responded in the time provided by filing a second amended 4 complaint to correct deficiencies in the amended complaint. Accordingly, this action will 5 proceed solely on the claims found cognizable above and the remaining claims and 6 defendants will be stricken from the amended complaint. Dkt. No. 15. 7 The claims against Defendants Kathleen Allison, Laura Mendez, Julie Garry, Ralph 8 Diaz, Keith Henderson, Osborn, Lt. Galvan, and Capt. Chamberlain are DISMISSED from 9 this action with prejudice and without any further leave to amend. Dkt. No. 17. The Clerk 10 shall terminate these Defendants from this action. 11 The Clerk shall also change “Warden Stephens” to “Sgt. Stephens” on the docket. 12 2. Plaintiff must provide to the Court the names of John Doe 1, Jane Doe, and 13 John Doe 4 by the dispositive motion date indicated below. See infra at 6. Failure to do so 14 will result in the dismissal of these Doe Defendants without prejudice to Plaintiff filing a 15 new action against them. 16 3. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 17 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 18 of the complaint, all attachments thereto, and a copy of this order upon Defendants Sgt. 19 Stephens and Warden Craig Koenig at the Correctional Training Facility (P.O. Box 20 686, Soledad, CA 93960-0686). 21 4. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 22 Procedure requires them to cooperate in saving unnecessary costs of service of the 23 summons and the amended complaint. Pursuant to Rule 4, if Defendants, after being 24 notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the 25 summons, fail to do so, they will be required to bear the cost of such service unless good 26 cause shown for their failure to sign and return the waiver form. If service is waived, this 1 except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file 2 an answer before sixty (60) days from the day on which the request for waiver was sent. 3 (This allows a longer time to respond than would be required if formal service of summons 4 is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 5 form that more completely describes the duties of the parties with regard to waiver of 6 service of the summons. If service is waived after the date provided in the Notice but 7 before Defendants have been personally served, the Answer shall be due sixty (60) days 8 from the date on which the request for waiver was sent or twenty (20) days from the date 9 the waiver form is filed, whichever is later. 10 5. No later than ninety-one (91) days from the date this order is filed, 11 Defendants shall file a motion for summary judgment or other dispositive motion with 12 respect to the claims in the amended complaint found to be cognizable above. 13 a. Any motion for summary judgment shall be supported by adequate 14 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 15 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 16 qualified immunity found, if material facts are in dispute. If any Defendant is of the 17 opinion that this case cannot be resolved by summary judgment, he shall so inform the 18 Court prior to the date the summary judgment motion is due. 19 b. In the event Defendants file a motion for summary judgment, the 20 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 21 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 22 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 23 6. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 24 no later than twenty-eight (28) days from the date Defendants’ motion is filed. 25 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 26 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 1 || element of his claim). Plaintiff is cautioned that failure to file an opposition to 2 || Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 3 || the granting of the motion, and granting of judgment against Plaintiff without a trial. See 4 || Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 5 || F.3d 651, 653 (9th Cir. 1994), 6 7. Defendants shall file a reply brief no later than fourteen (14) days after 7 || Plaintiff's opposition is filed. 8 8. The motion shall be deemed submitted as of the date the reply brief is due. 9 || No hearing will be held on the motion unless the Court so orders at a later date. 10 9. Discovery may be taken in accordance with the Federal Rules of Civil 11 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 2 Rule 16-1 is required before the parties may conduct discovery. E 13 10. ‘It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the S 14 || court 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 for failure to 16 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 5 17 11. Extensions of time must be filed no later than the deadline sought to be 5 18 || extended and must be accompanied by a showing of good cause. 19 IT IS SO ORDERED. hon 20 || Dated: _ September 11,2020. > oh tw men) BETH LABSON FREEMAN 71 United States District Judge 22 23 24 25 PROS SEBLACR 19\07938Lucus_sve 26 27