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 ORDER OF SERVICE; v. 9 ORDER DIRECTING DEFENDANTS TO FILE A 10 MATTHEW B. ACHTLEY, et al., DISPOSITIVE MOTION OR NOTICE REGARDING SUCH Defendants. 11 MOTION; 12 INSTRUCTIONS TO CLERK 13 14 INTRODUCTION 15 Plaintiff Bryan Ray Fletcher alleges his jailors at Salinas Valley State Prison 16 violated his Eighth Amendment rights by not addressing his living condition request. His 17 42 U.S.C. § 1983 complaint containing these allegations is now before the Court for 18 review pursuant to 28 U.S.C. § 1915A(a). 19 Fletcher has stated a cognizable Eighth Amendment claim. The Court directs 20 defendants to file in response to the complaint a dispositive motion, or a notice regarding 21 such motion, on or before August 5, 2022. 22 STANDARD OF REVIEW 23 A federal court must conduct a preliminary screening in any case in which a 24 prisoner seeks redress from a governmental entity or officer or employee of a 25 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 26 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 27 upon which relief may be granted or seek monetary relief from a defendant who is immune 1 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 2 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 3 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 4 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 5 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 6 plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 8 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 9 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 10 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 11 (9th Cir. 1994). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged violation was committed by a person acting under the 15 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 16 DISCUSSION 17 Fletcher alleges T. Lemon, warden, and R. Gamboa, acting warden, refused to act 18 on his living condition request, thereby increasing his risk of exposure to COVID, which is 19 of particular concern to Fletcher because of his vulnerable health. (Am. Compl., Dkt. No. 20 11 at 2-3.) When liberally construed, plaintiff has stated claims against T. Lemon and R. 21 Gamboa. 22 All other defendants and claims are DISMISSED. Fletcher names Matthew 23 Atchley, L. Gamboa, and Governor Newsom as defendants, but alleges no specific claims 24 or facts against them. 25 CONCLUSION 26 For the foregoing reasons, the Court orders as follows: 27 1. The Court orders service of the amended complaint (Dkt. No. 11) on 1 respond to the cognizable claims raised in the amended complaint. 2 2. Service on these defendants shall proceed under the California Department 3 of Corrections and Rehabilitation’s e-service program for civil rights cases from prisoners 4 in CDCR custody. In accordance with the program, the Clerk is directed to serve on 5 CDCR via email the following documents: the complaint (Docket No. 11), this order; a 6 CDCR Report of E-Service Waiver form; and a summons. The Clerk also shall serve a 7 copy of this order on the plaintiff. 8 3. No later than 40 days after service of this order via email on CDCR, CDCR 9 shall provide the court a completed CDCR Report of E-Service Waiver advising the court 10 which defendant(s) listed in this order will be waiving service of process without the need 11 for service by the United States Marshal Service (USMS) and which defendant(s) decline 12 to waive service or could not be reached. CDCR also shall provide a copy of the CDCR 13 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 14 days, shall file with the court a waiver of service of process for the defendant(s) who are 15 waiving service. 16 4. Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall 17 prepare for each defendant who has not waived service according to the CDCR Report of 18 E-Service Waiver a USM-205 Form. The Clerk shall provide to the USMS the completed 19 USM-205 forms and copies of this order, the summons and the operative complaint for 20 service upon each defendant who has not waived service. 21 5. On or before August 5, 2022, defendants shall file a motion for summary 22 judgment or other dispositive motion with respect to the claim(s) in the complaint found to 23 be cognizable above. 24 a. If defendants elect to file a motion to dismiss on the grounds plaintiff 25 failed to exhaust his available administrative remedies as required by 42 U.S.C. 26 § 1997e(a), defendants shall do so in a motion for summary judgment, as required by 27 Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). 1 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 2 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 3 qualified immunity found, if material facts are in dispute. If any defendant is of the 4 opinion that this case cannot be resolved by summary judgment, he shall so inform the 5 Court prior to the date the summary judgment motion is due. 6 6. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 7 and served on defendants no later than forty-five (45) days from the date defendants’ 8 motion is filed. 9 7. Defendants shall file a reply brief no later than fifteen (15) days after 10 plaintiff’s opposition is filed. 11 8. The motion shall be deemed submitted as of the date the reply brief is due. 12 No hearing will be held on the motion unless the Court so orders at a later date. 13 9. All communications by the plaintiff with the Court must be served on 14 defendants, or defendants’ counsel once counsel has been designated, by mailing a true 15 copy of the document to defendants or defendants’ counsel. 16 10. Discovery may be taken in accordance with the Federal Rules of Civil 17 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 18 Rule 16-1 is required before the parties may conduct discovery. 19 Plaintiff is reminded that state prisoners may review all non-confidential material in 20 their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783 (Cal. Ct. App. 21 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 22 Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. 23 Requests to review these files or for copies of materials in them must be made directly to 24 prison officials, not to the court. 25 Plaintiff may also use any applicable jail procedures to request copies of (or the 26 opportunity to review) any reports, medical records, or other records maintained by jail 27 officials that are relevant to the claims found cognizable in this order. Such requests must 1 2 11. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 3 Court informed of any change of address and must comply with the Court’s orders in a 4 timely fashion. Failure to do so may result in the dismissal of this action for failure to 5 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 6 12. Extensions of time must be filed no later than the deadline sought to be 7 extended and must be accompanied by a showing of good cause. 8 13. A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be 9 given “notice of what is required of them in order to oppose” summary judgment motions 10 at the time of filing of the motions, rather than when the court orders service of process or 11 otherwise before the motions are filed. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 12 2012). Defendants shall provide the following notice to plaintiff when he files and serves 13 any motion for summary judgment: 14 The defendants have made a motion for summary judgment by which they 15 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 16 case. 17 Rule 56 tells you what you must do in order to oppose a motion for summary 18 judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact — that is, if there is no real dispute about any 19 fact that would affect the result of your case, the party who asked for 20 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 21 judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, 22 you must set out specific facts in declarations, depositions, answers to 23 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendants’ declarations and documents and 24 show that there is a genuine issue of material fact for trial. If you do not 25 submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will 26 be dismissed and there will be no trial. 27 Rand v. Rowland, 154 F.3d 952, 962-963 (9th Cir. 1998). 1 2 14. Defendants Matthew Atchley, L. Gamboa, and Governor Newsom are 3 TERMINATED as defendants in this action, and the claims against them are DISMISSED. 4 || The Clerk shall terminate all defendants with the exceptions of T. Lemon and R. Gamboa. 5 IT IS SO ORDERED. 6 || Dated: March 22, 2022 YVWd2 7 AM H. ORRICK 8 United States District Judge 9 10 11 e 12 13 14 15 16 € 6 Zz 18 19 20 21 22 23 24 25 26 27 28