1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT LEE CROSBY, Case No. 24-cv-07714-HSG

8 Plaintiff, ORDER OF PARTIAL SERVICE 9 v.

10 SALVADOR SIORDIA, et al., 11 Defendants.

12 13 Plaintiff, an inmate at California State Prison – Solano, has filed a pro se action pursuant to 14 42 U.S.C. § 1983 against correctional officials at Correctional Training Facility (“CTF”) Central, 15 where he was previously housed. Now before the Court for review pursuant to 28 U.S.C. § 1915A 16 is Plaintiff’s complaint. Dkt. No. 1. Plaintiff has been granted leave to proceed in forma pauperis 17 in a separate order. 18 DISCUSSION 19 A. Standard of Review 20 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 21 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 23 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 24 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 25 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 26 989, 993 (9th Cir. 2020). 27 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 1 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 2 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 3 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 4 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 5 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 6 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 8 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 9 alleged violation was committed by a person acting under the color of state law. See West v. 10 Atkins, 487 U.S. 42, 48 (1988). 11 B. Complaint 12 The complaint names as defendants the following Correctional Training Facility 13 correctional officials: Salvador Siordia, Pedro Martinez, and J. Nunez. Dkt. No. 1 at 2. According 14 to the complaint and the attached exhibits, the following events occurred in late 2022. 15 On October 24, 2022, defendants Nunez and Siordia searched Plaintiff’s cell. They took 16 everything out, and tossed Plaintiff’s property around the cell. Defendant Siordia damaged 17 Plaintiff’s TV by dropping it; and took Plaintiff’s fan, Boostaro, Hamilton Beach grill, typewriter, 18 Hitecker tablet, and SD cord. When Plaintiff asked about the taking of his property and the 19 damage done to his TV, defendant Siordia said, “You messed with the bull, you get the horns.” At 20 the end of the search, Plaintiff was issued two separate rules violations reports (“RVRs”) – one for 21 possession of alcohol and one for possession of a wireless device. There was no alcohol found, so 22 the RVR for possession of alcohol violated prison regulations prohibiting the falsification of 23 documents, CDCR Dep’t Op. Manual §§ 33030.31, 33030.33; constituted harassment based on 24 race, in violation of Cal. Gov’t Code § 19572; and violated Cal. Gov’t. Code § 145572(f)(t), which 25 prohibits making intentionally misleading statements in an official report. Plaintiff believes that 26 defendant Siordia wrote up these RVRs on behalf of defendant Nunez because Nunez is “not that 27 bright.” Plaintiff was found guilty of these RVRs, and assessed 120 days forfeiture of credit for 1 On November 17, 2022, Plaintiff spoke to defendant Siordia about his racism and his 2 treatment of the Black inmates in G-Wing. Plaintiff informed defendant Siordia that if he didn’t 3 stop, Plaintiff would file a grievance against him. Defendant Siordia responded, “Oh, you like 4 writing up officers. I’ll show you how we do it.” Within 72 hours, the harassment started. 5 Defendant Siordia recruited defendants Martinez and Nunez “to help accomplish the mission of 6 alleviating themselves of inmates who [file grievances]” by having defendant Nunez assist with 7 the October 24, 2022 cell search, and having defendant Martinez attempt to move Plaintiff on 8 November 30, 2022. 9 On November 24, 2022, defendant Siordia again searched Plaintiff’s cell. Defendant 10 Siordia did not allow Plaintiff to witness the search. Afterwards, Plaintiff discovered that his 11 tennis shoes were missing and that there was no inventory slip documenting the loss. Plaintiff 12 submitted a request for interview form, asking defendant Siordia to confirm that he had searched 13 Plaintiff’s cell, asking where Plaintiff’s shoes were, and asking if defendant Siordia was aware that 14 he had damaged Plaintiff’s TV. Defendant Siordia did not respond. 15 On November 30, 2022, as part of Defendants’ efforts to remove black inmates from G 16 Wing to accommodate a Security Threat Group, defendant Martinez asked Plaintiff if he wanted to 17 move cells. Plaintiff refused. Defendant Martinez returned ten minutes later with defendant 18 Siordia, who ordered Plaintiff to move cells. Defendants only ordered Black inmates to move. 19 When Plaintiff again refused, defendant Martinez issued him an RVR for refusing a cell move and 20 disobeying a peace officer. Plaintiff believes that defendant Siordia wrote up this RVR on behalf 21 of defendant Martinez because Martinez is “not that bright.” Plaintiff was found guilty of this 22 RVR and assessed 61 days forfeiture of credit. 23 The above RVRs were engineered by defendant Siordia to punish Plaintiff for threatening 24 to file grievances and to deter other prisoners from filing grievances. As a result of the three 25 RVRs, prison officials deemed Plaintiff a program failure, and Plaintiff was forced to postpone his 26 parole board hearing by three years. 27 The complaint alleges that Defendants violated the First and Eighth Amendments by 1 deliberately failing to protect.” Dkt. No. 1 at 4, 5. 2 The complaint requests the following relief: repair of Plaintiff’s television and return of his 3 shoes, or replacement of both items with items of equal or greater values; an order enjoining 4 Defendants from engaging in the unlawful conduct described in the complaint; injunctive and 5 declaratory relief as appropriate; $100,000 each in compensatory, exemplary, mental anguish, 6 nominal, and punitive damages from each defendant; economic and noneconomic damages; 7 medical and related expenses; lost earnings, past and future; costs of suit; interest; and attorney’s 8 fees and costs. 9 C. Order of Partial Service 10 Liberally construed, the complaint’s allegation that defendant Siordia stole Plaintiff’s 11 tennis shoes in response to Plaintiff threatening to file grievances regarding defendant Siordia 12 states a cognizable First Amendment retaliation claim against defendant Siordia. Rhodes v. 13 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of 14 First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 15 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and 16 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 17 did not reasonably advance a legitimate correctional goal.”) (footnote omitted). 18 However, the complaint fails to state First Amendment retaliation claims against 19 defendants Nunez or Martinez. 20 Defendant Nunez’s actions were not “because of” Plaintiff’s protected conduct. The only 21 factual allegations against defendant Nunez are that defendant Nunez participated in defendant 22 Siordia’s search of Plaintiff’s cell and issued Plaintiff two RVRs in relation to this cell search. 23 However, this cell search took place on October 24, 2022, which was prior to the alleged protected 24 conduct – Plaintiff’s November 17, 2022 statement that he would file grievances regarding 25 defendant Siordia. 26 The allegation that defendant Martinez’s actions were “because of” Plaintiff’s protected 27 conduct are conclusory. The only links between Plaintiff’s November 17, 2022 protected conduct 1 defendant Siordia “used” defendant Martinez to fulfill his objective of ridding himself of inmates 2 who file grievances and the fact that defendant Siordia was summoned by defendant Martinez 3 after Plaintiff’s initial refusal to move cells. Nothing in the record indicates that defendant 4 Martinez was aware of Plaintiff’s protected conduct, especially as Plaintiff states that defendant 5 Martinez was not bright enough to realize that defendant Siordia was manipulating and using him. 6 The complaint also fails to state an Eighth Amendment claim for deliberate indifference to 7 inmate safety because Plaintiff has not alleged any risk to his safety. Farmer v. Brennan, 511 U.S. 8 825, 834 (1994) (Eighth Amendment requires that prison officials take reasonable measures to 9 guarantee the safety of prisoners). 10 The Court therefore DISMISSES defendants Nunez and Martinez from this action because 11 Plaintiff has not stated cognizable claims against them. The Court also DISMISSES the Eighth 12 Amendment claim. Because it appears that Plaintiff could correct the above deficiencies, the 13 Court GRANTS Plaintiff leave to file an amended complaint to address these deficiencies if 14 Plaintiff so wishes. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (“a district court 15 should grant leave to amend even if no request to amend the pleading was made, unless it 16 determines that the pleading could not possibly be cured by the allegation of other facts”) (internal 17 citation and quotation marks omitted). 18 CONCLUSION 19 For the foregoing reasons, the Court orders as follows. 20 1. The following defendant(s) shall be served: Correctional Training Facility officer 21 Salvador Siordia. 22 2. Service on the listed defendant(s) shall proceed under the California Department of 23 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners 24 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the 25 CDCR via email the following documents: the operative complaint (Dkt. No. 1), this order of 26 service, a CDCR Report of E-Service Waiver form and a summons. The Clerk also shall serve a 27 copy of this order on the Plaintiff. 1 provide the court a completed CDCR Report of E-Service Waiver advising the court which 2 defendant(s) listed in this order will be waiving service of process without the need for service by 3 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 4 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 5 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 6 a waiver of service of process for the defendant(s) who are waiving service. 7 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 8 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 9 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 10 of this order, the summons, and the operative complaint for service upon each defendant who has 11 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 12 Service Waiver. 13 3. The Court DISMISSES defendants Nunez and Martinez from this action; and 14 DISMISSES the Eighth Amendment claim. 15 4. The Court GRANTS Plaintiff leave to file an amended complaint addressing the 16 deficiencies identified in the complaint. If Plaintiff wishes to file an amended complaint, he shall 17 file an amended complaint within twenty-eight (28) days of the date of this order. The amended 18 complaint must include the caption and civil case number used in this order, Case No. C 24-07714 19 HSG (PR) and the words “AMENDED COMPLAINT” on the first page. If using the court’s form 20 complaint, Plaintiff must answer all the questions on the form in order for the action to proceed. 21 An amended complaint completely replaces the previous complaints. See Lacey v. Maricopa 22 Cnty., 693 F.3d 896, 925 (9th Cir. 2012). Accordingly, Plaintiff must include in his amended 23 complaint all the claims he wishes to present and all of the defendants he wishes to sue, including 24 the defendant(s) served above and the claim(s) found cognizable below. Plaintiff may not 25 incorporate material from the prior complaints by reference. Failure to file an amended complaint 26 in accordance with this order in the time provided will result in Dkt. No. 1 remaining the operative 27 complaint and this action proceeding solely against the defendant(s) ordered served above and on 1 form with a copy of this order to Plaintiff. 2 5. As detailed above, the complaint states a cognizable First Amendment retaliation 3 claim against Correctional Training Facility officer S. Siordia. 4 6. In order to expedite the resolution of this case, the Court orders as follows: 5 a. No later than 91 days from the date this order is filed, Defendant must file 6 and serve a motion for summary judgment or other dispositive motion. If Defendant is of the 7 opinion that this case cannot be resolved by summary judgment, Defendant must so inform the 8 Court prior to the date the motion is due. A motion for summary judgment also must be 9 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what 10 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 11 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 12 served concurrently with motion for summary judgment).1 13 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 14 must be filed with the Court and served upon Defendant no later than 28 days from the date the 15 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 16 provided later in this order as he prepares his opposition to any motion for summary judgment. 17 Defendant shall file a reply brief no later than 14 days after the date the opposition is filed. The 18 motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on 19 the motion. 20 7. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 21 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 22 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 23 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 24 any fact that would affect the result of your case, the party who asked for summary judgment is 25 1 If Defendant asserts that Plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), Defendant must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) 27 (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that 1 entitled to judgment as a matter of law, which will end your case. When a party you are suing 2 makes a motion for summary judgment that is properly supported by declarations (or other sworn 3 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 4 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 5 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and 6 documents and show that there is a genuine issue of material fact for trial. If you do not submit 7 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 8 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 9 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 10 not excuse Defendant’s obligation to serve said notice again concurrently with a motion for 11 summary judgment. Woods, 684 F.3d at 939). 12 8. All communications by Plaintiff with the Court must be served on Defendant’s 13 counsel by mailing a true copy of the document to Defendant’s counsel. The Court may disregard 14 any document which a party files but fails to send a copy of to his opponent. Until Defendant’s 15 counsel has been designated, Plaintiff may mail a true copy of the document directly to Defendant 16 but once Defendant is represented by counsel, all documents must be mailed to counsel rather than 17 directly to Defendant. 18 9. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 19 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 20 before the parties may conduct discovery. 21 10. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 22 Court informed of any change of address and must comply with the Court’s orders in a timely 23 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 24 to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 25 pending case every time he is moved to a new facility. 26 11. Any motion for an extension of time must be filed no later than the deadline sought 27 to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 1 Court for consideration in this case. 2 IT IS SO ORDERED. 3 Dated: March 14, 2025

DNaG S. GILLIAM, JR. / 5 United States District Judge 6 7 8 9 10 11 a 12

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