1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3

KEITH M. HOPKINS,

4 Case No. 20-cv-01892-YGR (PR) Plaintiff, 5 ORDER OF PARTIAL DISMISSAL v. AND SERVICE 6

CALIFORNIA FORENSIC MEDICAL

7 GROUP, et al., 8 Defendants.

9 I. INTRODUCTION 10 Plaintiff, a federal prisoner currently incarcerated at Federal Correctional Institution- 11 Lompoc, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 stemming from alleged 12 constitutional violations that occurred while he was held in custody as a pretrial federal detainee at 13 Santa Rita Jail (“SRJ”) for three years from September 2015 to 2018. 14 His motion for leave to proceed in forma pauperis will be granted in a separate written 15 Order. 16 Venue is proper because the events giving rise to the claims are alleged to have occurred at 17 SRJ, which is located in this judicial district. See 28 U.S.C. § 1391(b). 18 In his complaint, Plaintiff names the following Defendants: California Forensic Medical 19 Group (“CFMG”), CFMG Health Care Provider Dr. Maria Magat, Alameda County, Alameda 20 County Sherriff Gregory Ahern, and “Does 1-30.” Dkt. 1 at 2-4.1 Plaintiff seeks monetary and 21 punitive damages. Id. at 5. 22 II. DISCUSSION 23 A. Standard of Review 24 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 25 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 27 1 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 2 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 3 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 4 Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 6 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 7 the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 8 487 U.S. 42, 48 (1988). 9 B. Legal Claims 10 Plaintiff, who suffers from sleep apnea, alleges the following claims: (1) a breach of 11 contract claim against CFMG and Alameda County for failing to allow Plaintiff access to his 12 Continuous Positive Airway Pressure (“CPAP”) machine “at all times when he sleeps” and for 13 failing to provide new equipment for his CPAP machine; (2) a Fourteenth Amendment claim of 14 denial of medical care against all Defendants, including “Does 1-15,” based on Defendant Magat’s 15 June 2017 denial of Plaintiff’s “request for a specialist who could help him with his sleep 16 deprivation and CPAP equipment,” and also based on the actions of “Jane Doe #1” on November 17 7, 2017 and “Jane Doe #2” on March 4, 2018 for “fail[ing] to get [Plaintiff] an escort to [the Out- 18 Patient Housing Unit (“OPHU”)] for his CPAP treatment; (3) Plaintiff invokes this Court’s 19 supplemental jurisdiction under 28 U.S.C. § 1367 by claiming that Defendants “Jane Doe #1 and 20 #2,” Alameda County, CFMG and Ahern violated California Government Code § 845.6 because 21 they were aware that Plaintiff suffered from sleep apnea but failed to allow him on November 7, 22 2017 and March 4, 2018 “to sleep with his CPAP machine to prevent apnea attacks that could 23 potentially cause death for [Plaintiff]”; (4) supervisory liability claims against Defendants 24 Alameda County, Ahern and “Does 16-30”; and (5) a Fourteenth Amendment claim of denial of 25 medical care2 against Defendants CFMG Medical Director “Doe #3”, Dr. Magat and “Does 1-15” 26 2 The complaint uses the phrase “Fourteenth Amendment Right to Equal Protection” under 27 Claim 5, but Plaintiff does not allege any facts that suggest a defendant violated his rights under 1 for “deny[ing] [Plaintiff’s] request for a rechargeable battery for his CPAP machine.” Dkt. 1 at 2 10-13. 3 Claims 1-5 as they relate to Plaintiff’s allegations against CFMG, Alameda County, and 4 Defendant Ahern do not allege facts demonstrating that these Defendants violated Plaintiff’s 5 federal rights, but seem to claim these Defendants are liable based on the conduct of their 6 subordinates, Defendant Magat and “Jane Does #1 and #2” as well as “Doe #3.” There is, 7 however, no respondeat superior liability under section 1983 solely because a defendant (such as 8 Defendant Ahern, who is the Alameda County Sheriff) is responsible for the actions or omissions 9 of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, Plaintiff has not 10 alleged grounds for municipal liability against Defendants CFMG and Alameda County based on 11 any theory other than that of respondeat superior. This is not a sufficient ground for municipal 12 liability. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978) (local governments 13 cannot be liable under section 1983 under respondeat superior theory). Accordingly, Plaintiff’s 14 Claims 1-5 as they relate to Plaintiff’s allegations against Defendants CFMG, Alameda County, 15 and Ahern are DISMISSED without prejudice. 16 Claim 2 and 5, when liberally construed, are cognizable under section 1983 and shall 17 proceed against Defendants Magat as well as “Jane Does #1 and #2” and “Doe #3.” Under Claim 18 3, Plaintiff has also sufficiently alleged a cognizable claim that “Jane Does #1 and #2” breached 19 their duty to provide the prevailing standard of care by failing to get Plaintiff an escort to OPHU 20 for his CPAP treatment. However, regarding “Jane Does #1 and #2,” Plaintiff describes these 21 Defendants as “housing 7 technicians” who were on duty on November 7, 2017 and March 4, 22 2018, respectively, but states that he does know these Defendants’ names. Dkt. 1 at 8, 10-11. 23 Similarly, Plaintiff describes “Doe #3” as the “CFMG Medical Director,” but he also does not 24 know this Defendant’s name. Id. at 13. Although the use of “John Doe” to identify a defendant is 25 not favored in the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); 26 Wiltsie v. Cal. Dep’t of Corrections, 406 F.2d 515, 518 (9th Cir. 1968), situations may arise where 27 1 the identity of alleged defendants cannot be known prior to the filing of a complaint. In such 2 circumstances, the plaintiff should be given an opportunity through discovery to identify the 3 unknown defendants, unless it is clear that discovery would not uncover their identities or that the 4 complaint should be dismissed on other grounds. See Gillespie, 629 F.2d at 642; Velasquez v. 5 Senko, 643 F. Supp. 1172, 1180 (N.D. Cal. 1986). Plaintiff must provide to the Court the names 6 of “Jane Does #1 and #2” as well as “Doe #3” by the date scheduled in this Order for any served 7 Defendant to file a dispositive motion. Failure to do so will result in dismissal of Defendants 8 “Jane Does #1 and #2” as well as “Doe #3” without prejudice to Plaintiff filing a new action 9 against these Doe Defendants. 10 Finally, in the sections of the complaint where Plaintiff sets forth his allegations of his 11 Fourteenth Amendment claims, he identifies “Does 4-30” as those who were present and 12 participated in alleged denial of medical care. As explained above, a claim stated against Doe 13 Defendants without further identifying information is not favored in the Ninth Circuit. See 14 Gillespie, 629 F.2d at 642. Therefore, Plaintiff’s claims against the remaining Doe Defendants— 15 “Does 4-30”—are DISMISSED without prejudice. 16 III. CONCLUSION 17 For the foregoing reasons, the Court orders as follows: 18 1. Claims 1-5 as they relate to Plaintiff’s allegations against Defendants CFMG, 19 Alameda County, and Ahern are DISMISSED without prejudice. 20 2. Plaintiff’s allegations in his complaint under Claims 2 and 5 state cognizable 21 Fourteenth Amendment denial of medical care claims against Defendant Magat and Doe 22 Defendants “Jane Does #1 and #2” as well as “Doe #3.” Plaintiff must provide to the Court the 23 names of Doe Defendants “Jane Does #1 and #2” as well as “Doe #3” by the dispositive motion 24 due date indicated below. Failure to do so will result in dismissal of Doe Defendants “Jane Does 25 #1 and #2” as well as “Doe #3” without prejudice to Plaintiff filing a new action against them. 26 3. Plaintiff’s claims against the remaining Doe Defendants—“Does 4-30”—are 27 DISMISSED without prejudice. 1 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 2 and all attachments thereto (dkt. 1), and a copy of this Order to CFMG Health Care Provider 3 Dr. Maria Magat (hereinafter “Defendant”) at SRJ. 4 The Clerk shall also mail a copy of the complaint and a copy of this Order to the State 5 Attorney General’s Office in San Francisco. Additionally, the Clerk shall mail a copy of this 6 Order to Plaintiff. 7 5. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires 8 Defendant to cooperate in saving unnecessary costs of service of the summons and complaint. 9 Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the court, on 10 behalf of Plaintiff, to waive service of the summons, fail to do so, Defendant will be required to 11 bear the cost of such service unless good cause be shown for Defendant’s failure to sign and return 12 the waiver form. If service is waived, this action will proceed as if Defendant had been served on 13 the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be 14 required to serve and file an answer before sixty (60) days from the date on which the request for 15 waiver was sent. (This allows a longer time to respond than would be required if formal service of 16 summons is necessary.) Defendant is asked to read the statement set forth at the foot of the waiver 17 form that more completely describes the duties of the parties with regard to waiver of service of 18 the summons. If service is waived after the date provided in the Notice but before Defendant has 19 been personally served, the Answer shall be due sixty (60) days from the date on which the 20 request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever 21 is later. 22 6. Defendant shall answer the complaint in accordance with the Federal Rules of Civil 23 Procedure. The following briefing schedule shall govern dispositive motions in this action: 24 a. No later than sixty (60) days from the date the answer is due, Defendant 25 shall file a motion for summary judgment or other dispositive motion. The motion must be 26 supported by adequate factual documentation, must conform in all respects to Federal Rule of 27 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 1 the events at issue. A motion for summary judgment also must be accompanied by a Rand3 notice 2 so that Plaintiff will have fair, timely and adequate notice of what is required of him in order to 3 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 4 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 5 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 6 However, the court notes that under the new law of the circuit, in the rare event that a failure to 7 exhaust is clear on the face of the complaint, Defendant may move for dismissal under Rule 8 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. 9 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315 10 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative 11 remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a 12 defendant as an unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on 13 the face of the complaint, Defendant must produce evidence proving failure to exhaust in a motion 14 for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most 15 favorable to Plaintiff shows a failure to exhaust, Defendant is entitled to summary judgment under 16 Rule 56. Id. But if material facts are disputed, summary judgment should be denied and the 17 district judge rather than a jury should determine the facts in a preliminary proceeding. Id. at 18 1168. 19 If Defendant is of the opinion that this case cannot be resolved by summary judgment, 20 Defendant shall so inform the court prior to the date the summary judgment motion is due. All 21 papers filed with the court shall be promptly served on Plaintiff. 22 b. Plaintiff’s opposition to the dispositive motion shall be filed with the court 23 and served on Defendant no later than twenty-eight (28) days after the date on which Defendant’s 24 motion is filed. 25 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 26 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 27 1 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 2 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 3 any fact that would affect the result of your case, the party who asked for summary judgment is 4 entitled to judgment as a matter of law, which will end your case. When a party you are suing 5 makes a motion for summary judgment that is properly supported by declarations (or other sworn 6 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 7 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 8 as provided in Rule 56(e), that contradicts the facts shown in the defendant’s declarations and 9 documents and show that there is a genuine issue of material fact for trial. If you do not submit 10 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 11 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 12 F.3d at 962-63. 13 Plaintiff also is advised that—in the rare event that Defendant argues that the failure to 14 exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available 15 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 16 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 17 exhaust your available administrative remedies before coming to federal court. Such evidence 18 may include: (1) declarations, which are statements signed under penalty of perjury by you or 19 others who have personal knowledge of relevant matters; (2) authenticated documents— 20 documents accompanied by a declaration showing where they came from and why they are 21 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 22 in your complaint insofar as they were made under penalty of perjury and they show that you have 23 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 24 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 25 motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed 26 issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168. 27 (The notices above do not excuse Defendant’s obligation to serve similar notices again 1 motions for summary judgment. Woods, 684 F.3d at 935.) 2 d. Defendant shall file a reply brief no later than fourteen (14) days after the 3 date Plaintiffs opposition is filed. 4 e. The motion shall be deemed submitted as of the date the reply brief is due. 5 No hearing will be held on the motion unless the court so orders at a later date. 6 7. Discovery may be taken in this action in accordance with the Federal Rules of Civil 7 Procedure. Leave of the court pursuant to Rule 30(a)(2) is hereby granted to Defendant to depose 8 Plaintiff and any other necessary witnesses confined in prison. 9 8. All communications by Plaintiff with the court must be served on Defendant or 10 || Defendant’s counsel, once counsel has been designated, by mailing a true copy of the document to 11 them. 12 9. It is Plaintiffs responsibility to prosecute this case. Plaintiff must keep the court 13 informed of any change of address and must comply with the court’s orders in a timely fashion. 14 || Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 3 15 while an action is pending must promptly file a notice of change of address specifying the new 16 address. See L.R. 3-11(a). The court may dismiss without prejudice a complaint when: (1) mail 2 17 directed to the pro se party by the court has been returned to the court as not deliverable, and 18 (2) the court fails to receive within sixty days of this return a written communication from the pro 19 se party indicating a current address. See L.R. 3-11(b). 20 10. Upon a showing of good cause, requests for a reasonable extension of time will be 21 granted provided they are filed on or before the deadline they seek to extend. 22 IT IS SO ORDERED. 23 || Dated: 11/16/2020 24 Caen Hap

ONNE GON EZ*"ROGERS

25 nited States District Judge 26 27 28