Fratus v. Washington

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JOHN FRATUS, Case No. 24-cv-03261 EJD (PR) 7 Plaintiff, ORDER OF SERVICE; TERMINATING MOTION AS 8 v. MOOT; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION 9 WASHINGTON, et al., OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 10 Defendants. CLERK 11 (Docket No. 15) 12 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 13 U.S.C. § 1983 against prison staff at Salinas Valley State Prison (“SVSP”) where he was 14 previously housed. Dkt. No. 1. Plaintiff has paid the filing fee. Dkt. No. 16. 15 16 DISCUSSION 17 A. Standard of Review 18 A federal court must conduct a preliminary screening in any case in which a 19 prisoner seeks redress from a governmental entity or officer or employee of a 20 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 21 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 22 upon which relief may be granted or seek monetary relief from a defendant who is immune 23 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 24 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 25 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 26 elements: (1) that a right secured by the Constitution or laws of the United States was 27 violated, and (2) that the alleged violation was committed by a person acting under the 1 B. Plaintiff’s Claims 2 Plaintiff claims that on September 17, 2021, he was on suicide watch when a nurse 3 reported him for indecent exposure. Dkt. No. 1 at 6. Plaintiff asserts that his gown was 4 flimsy and the exposure was an accident. Id. Defendants Sgt. Washington and 5 Correctional Officer Avila came to his cell and order Plaintiff to “cuff up.” Id. When 6 Plaintiff objected, Defendants Sgt. Washington and Correctional Officer Avila entered his 7 cell and punched Plaintiff in the face and head before slamming him down to the ground 8 and placing him in handcuffs. Id. at 6-7. Plaintiff claims his injuries included lumps, 9 bumps, bruises, and a black eye. Id. at 7. Plaintiff states that the nurse who was present, 10 M. Gervacio, agreed that “[there] was no reason” for Defendants’ conduct. Id. at 8. 11 Plaintiff claims Defendants’ actions violated his Eighth Amendment right to be free from 12 cruel and unusual punishment due to their excessive force. Id. at 10. Plaintiff seeks 13 damages. Id. at 11. Plaintiff’s allegations are sufficient to state a claim for excessive 14 force. See Hudson v. McMillian, 503 U.S. 1, 6 (1992). 15 16 CONCLUSION 17 For the reasons set forth above, the Court orders as follows: 18 1. The following defendant at SVSP shall be served: 19 a. Sgt. Washington 20 b. Correctional Officer Avila 21 Service on the listed defendant(s) shall proceed under the California Department of 22 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 23 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 24 on CDCR via email the following documents: the operative complaint and any attachments 25 thereto, (Dkt. No. 1), this order of service, a CDCR Report of E-Service Waiver form and 26 a summons. The clerk also shall serve a copy of this order on the plaintiff. 27 No later than 40 days after service of this order via email on CDCR, CDCR shall 1 defendant(s) listed in this order will be waiving service of process without the need for 2 service by the United States Marshal Service (USMS) and which defendant(s) decline to 3 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 4 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 5 days, shall file with the court a waiver of service of process for the defendant(s) who are 6 waiving service. 7 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 8 each defendant who has not waived service according to the CDCR Report of E-Service 9 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 10 forms and copies of this order, the summons and the operative complaint for service upon 11 each defendant who has not waived service. The clerk also shall provide to the USMS a 12 copy of the CDCR Report of E-Service Waiver. 13 2. No later than ninety-one (91) days from the date this order is filed, 14 Defendants shall file a motion for summary judgment or other dispositive motion with 15 respect to the claims in the complaint found to be cognizable above. 16 a. 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 b. In the event Defendants file a motion for summary judgment, the 23 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 24 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 25 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 26 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 27 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 1 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 2 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 3 must come forward with evidence showing triable issues of material fact on every essential 4 element of his claim). Plaintiff is cautioned that failure to file an opposition to 5 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 6 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 7 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 8 F.3d 651, 653 (9th Cir. 1994). 9 4. Defendants shall file a reply brief no later than fourteen (14) days after 10 Plaintiff’s opposition is filed. 11 5. 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 6. 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 7. 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 8. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 20 court informed of any change of address and must comply with the court’s orders in a 21 timely fashion. Failure to do so may result in the dismissal of this action for failure to 22 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 23 9. Extensions of time must be filed no later than the deadline sought to be 24 extended and must be accompanied by a showing of good cause. 25 10. Plaintiff’s motion for an extension of time to pay the filing fee shall be 26 terminated as moot. Dkt. No. 15. 27 This order terminates Docket No. 15. 1 IT IS SO ORDERED. 2 || Dated: December 30, 2024 3 EDWARD J. DAVILA United States District Judge 4 5 6 7 8 9 10 1] a 12 2B «14 15 16 17 © Z 18 19 20 21 22 23 24 25 26 27 28