Fletcher v. Achtley ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN RAY FLETCHER, Case No. 21-cv-01021-WHO (PR) Plaintiff, 8 SECOND ORDER OF SERVICE; v. 9 ORDER DIRECTING DEFENDANTS TO FILE A 10 T. LEMON, et al., DISPOSITIVE MOTION OR NOTICE REGARDING SUCH Defendants. 11 MOTION; 12 INSTRUCTIONS TO CLERK 13 Dkt. No. 23 14 INTRODUCTION 15 Plaintiff Bryan Ray Fletcher alleges that his jailors at Salinas Valley State Prison 16 violated his Eighth Amendment rights by not addressing his living condition requests. His 17 first amended 42 U.S.C. § 1983 complaint containing these allegations is now before the 18 Court for review pursuant to 28 U.S.C. § 1915A(a). 19 Fletcher has stated cognizable Eighth Amendment claims against various 20 defendants. The Court directs defendants to file in response to the complaint a dispositive 21 motion, or a notice regarding such motion, on or before March 20, 2023. 22 Fletcher’s motion for leave to file a second amended complaint is GRANTED. 23 (Dkt. No. 23.) No further amended complaints will be allowed or entertained. 24 STANDARD OF REVIEW 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 3 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 5 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 6 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 7 plausibility when the plaintiff pleads factual content that allows the court to draw the 8 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 9 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 10 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 11 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 12 (9th Cir. 1994). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged violation was committed by a person acting under the 16 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 17 DISCUSSION 18 In the first amended complaint, Fletcher alleged that in 2020 T. Lemon and R. 19 Gamboa, both deputy wardens of Salinas Valley State Prison, refused to act on his living 20 condition requests, thereby increasing his risk of exposure to COVID, which is of 21 particular concern to Fletcher because of his vulnerable health. (First Am. Compl., Dkt. 22 No. 11 at 2-3.) These claims were found cognizable and an Order of Service Issued. (Dkt. 23 No. 17.) 24 Fletcher has filed a motion to file a second amended complaint, which is 25 GRANTED. (Dkt. No. 23.) No further amended complaints will be allowed or 26 entertained. 27 In his second amended complaint, Fletcher alleges Lemon, Gamboa, S. Gates, Chief 1 Executive Officer of Salinas Valley State Prison, failed to act on his requests for medical 2 services, which he was in great need of because of his asthma and kidney disease. (Second 3 Am. Compl., Dkt. No. 25 at 5.) He also alleges they failed to act on his complaint 4 regarding COVID-safety in his housing unit. (Id.) When liberally construed, Fletcher has 5 stated Eighth Amendment claims against Lemon, Gamboa, Gates, and Padilla. 6 All other claims and defendants are DISMISSED. Fletcher’s claims against 7 different defendants regarding COVID-safety at his kitchen job are DISMISSED without 8 prejudice to Fletcher raising these claims in a separate civil rights action. Federal pleading 9 rules require that claims be based on “the same transaction, occurrence, or series of 10 transactions or occurrences” and pose a “question of law or fact common to all 11 defendants.” Fed. R. Civ. P. 20(a)(2). 12 CONCLUSION 13 For the foregoing reasons, the Court orders as follows: 14 1. The Court orders service of the second amended complaint (Dkt. No. 25) on 15 defendants T. Lemon, R. Gamboa, S. Gates, and G.R. Padilla at Salinas Valley State 16 Prison and orders defendants to respond to the cognizable claims raised in the amended 17 complaint. 18 2. Service on these defendants shall proceed under the California Department 19 of Corrections and Rehabilitation’s e-service program for civil rights cases from prisoners 20 in CDCR custody. In accordance with the program, the Clerk is directed to serve on 21 CDCR via email the following documents: the second amended complaint (Docket No. 22 25), this order; a CDCR Report of E-Service Waiver form; and a summons. The Clerk 23 also shall serve a copy of this order on the plaintiff. 24 3. No later than 40 days after service of this order via email on CDCR, CDCR 25 shall provide the court a completed CDCR Report of E-Service Waiver advising the court 26 which defendant(s) listed in this order will be waiving service of process without the need 27 for service by the United States Marshal Service (USMS) and which defendant(s) decline 1 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 2 days, shall file with the court a waiver of service of process for the defendant(s) who are 3 waiving service. 4 4. Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall 5 prepare for each defendant who has not waived service according to the CDCR Report of 6 E-Service Waiver a USM-205 Form. The Clerk shall provide to the USMS the completed 7 USM-205 forms and copies of this order, the summons and the operative complaint for 8 service upon each defendant who has not waived service. 9 5. On or before March 20, 2023, defendants shall file a motion for summary 10 judgment or other dispositive motion with respect to the claim(s) in the complaint found to 11 be cognizable above. 12 a. If defendants elect to file a motion to dismiss on the grounds plaintiff 13 failed to exhaust his available administrative remedies as required by 42 U.S.C. 14 § 1997e(a), defendants shall do so in a motion for summary judgment, as required by 15 Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). 16 b. Any motion for summary judgment shall be supported by adequate 17 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 18 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 19 qualified immunity found, if material facts are in dispute. If any defendant is of the 20 opinion that this case cannot be resolved by summary judgment, he shall so inform the 21 Court prior to the date the summary judgment motion is due. 22 6. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 23 and served on defendants no later than forty-five (45) days from the date defendants’ 24 motion is filed. 25 7. Defendants shall file a reply brief no later than fifteen (15) days after 26 plaintiff’s opposition is filed. 27 8. The motion shall be deemed submitted as of the date the reply brief is due. 1 9. All communications by the plaintiff with the Court must be served on 2 defendants, or defendants’ counsel once counsel has been designated, by mailing a true 3 copy of the document to defendants or defendants’ counsel. 4 10. Discovery may be taken in accordance with the Federal Rules of Civil 5 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 6 Rule 16-1 is required before the parties may conduct discovery. 7 Plaintiff is reminded that state prisoners may review all non-confidential material in 8 their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783 (Cal. Ct. App. 9 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 10 Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. 11 Requests to review these files or for copies of materials in them must be made directly to 12 prison officials, not to the court. 13 Plaintiff may also use any applicable jail procedures to request copies of (or the 14 opportunity to review) any reports, medical records, or other records maintained by jail 15 officials that are relevant to the claims found cognizable in this order. Such requests must 16 be made directly to jail officials, not to the court. 17 11. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 18 Court informed of any change of address and must comply with the Court’s orders in a 19 timely fashion. Failure to do so may result in the dismissal of this action for failure to 20 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 21 12. Extensions of time must be filed no later than the deadline sought to be 22 extended and must be accompanied by a showing of good cause. 23 13. A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be 24 given “notice of what is required of them in order to oppose” summary judgment motions 25 at the time of filing of the motions, rather than when the court orders service of process or 26 otherwise before the motions are filed. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 27 2012). Defendants shall provide the following notice to plaintiff when he files and serves ! The defendants have made a motion for summary judgment by which they 2 seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your 3 case. 4 . . Rule 56 tells you what you must do in order to oppose a motion for summary 5 judgment. Generally, summary judgment must be granted when there is no 6 genuine issue of material fact — that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for 7 summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary 8 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 specific facts in declarations, depositions, answers to 10 interrogatories, or authenticated documents, as provided in Rule 56(e), that i contradict the facts shown in the defendants’ declarations and documents and show that there is a genuine issue of material fact for trial. If you do not 12 submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will 13 be dismissed and there will be no trial. 14 Rand v. Rowland, 154 F.3d 952, 962-963 (9th Cir. 1998). © 15 14. __ Fletcher’s motion to file a second amended complaint is GRANTED. (Dkt. 16 || No. 23.) No further amended complaints will be allowed or entertained. 17 15. The Clerk shall terminate all pending motions. Z 18 IT IS SO ORDERED. 19 || Dated: December 16, 2022 . 20 H-ORR 21 United States District Judge 22 23 24 25 26 27 28