1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DWIGHT CARROLL, Case No. 21-cv-09933-JD

8 Plaintiff,

ORDER RE SERVICE

v. 9

10 KIRBY CHRISTOFF, et al., Defendants. 11

12 13 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. 14 The original complaint was dismissed with leave to amend, and plaintiff has filed an amended 15 complaint. 16 DISCUSSION 17 STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 27 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 1 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 2 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 3 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 4 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 5 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 6 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 7 should assume their veracity and then determine whether they plausibly give rise to an entitlement 8 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by 10 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 11 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 12 LEGAL CLAIMS 13 Plaintiff alleges that he was assaulted by correctional officers. The treatment a convicted 14 prisoner receives in prison and the conditions under which he is confined are subject to scrutiny 15 under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993). “After 16 incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual 17 punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) 18 (ellipsis in original) (internal quotation and citation omitted). A prison official violates the Eighth 19 Amendment when two requirements are met: (1) the deprivation alleged must be, objectively, 20 sufficiently serious, Farmer v. Brennan, 511 U.S. 824, 834 (1994) (citing Wilson v. Seiter, 501 21 U.S. 294, 298 (1991)), and (2) the prison official possesses a sufficiently culpable state of mind, 22 i.e., the offending conduct was wanton, id. (citing Wilson, 501 U.S. at 297). 23 The objective component of an Eighth Amendment excessive force claim does not have a 24 “categorical standard,” but rather is “contextual and responsive to contemporary standards of 25 decency.” Bearchild v. Cobban, 947 F.3d 1130, 1140 (9th Cir. 2020) (quoting Hudson v. 26 McMillian, 503 U.S. 1, 8 (1992). A prisoner “must objectively show that he was deprived of 27 something sufficiently serious . . . but what constitutes a sufficiently serious deprivation may 1 and citations omitted). The core judicial inquiry is whether force was applied in a good-faith 2 effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson, 503 3 U.S. at 6-7. 4 Plaintiff alleges that in 2006 defendant Correctional Officer Christoff assaulted him while 5 he was laying on the ground. He states that he was kicked in the head, face and ribs and suffered 6 injuries. Defendant Sergeant Hassan arrived and dragged plaintiff along the floor to the medical 7 office to receive treatment. Plaintiff was accused of assaulting a peace officer and the case was 8 referred to the district attorney’s office for prosecution where plaintiff was acquitted at trial. 9 Plaintiff was also found guilty of a Rules Violation Report for this incident which he states was 10 reversed in 2019. These allegations are sufficient to proceed against Christoff and Hassan and 11 plaintiff has presented arguments that this claim may still be timely. 12 CONCLUSION 13 1. The Court orders that following defendants be served ELECTRONICALLY: 14 Correctional Officer Kirby Christoff and Sergeant Hassan. These defendants worked at San 15 Quentin State Prison in 2006 and were assigned to work in west block on May 26, 2006. 16 Service on the listed defendant will be effected via the California Department of 17 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners 18 in CDCR custody. In accordance with the program, the Clerk is directed to serve on CDCR via 19 email the following documents: the operative complaint, this order of service, a CDCR Report of 20 E-Service Waiver form and a summons. The Clerk also requested to serve a copy of this order on 21 the plaintiff. 22 No later than 40 days after service of this order via email on CDCR, CDCR will provide 23 the Court a completed CDCR Report of E-Service Waiver advising the court which defendant 24 listed in this order will be waiving service of process without the need for service by the United 25 States Marshal Service (USMS) and which defendant declines to waive service or could not be 26 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 27 California Attorney General’s Office which, within 21 days, will file with the Court a waiver of 1 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk is requested to prepare 2 for each defendant who has not waived service according to the CDCR Report of E-Service 3 Waiver a USM-205 Form. The Clerk will provide to the USMS the completed USM-205 forms 4 and copies of this order, the summons and the operative complaint for service upon each defendant 5 who has not waived service. The Clerk will also provide to the USMS a copy of the CDCR 6 Report of E-Service Waiver. 7 2. To expedite the resolution of this case, the Court orders: 8 a. No later than sixty days from the date of service, defendant shall file a 9 motion for summary judgment or other dispositive motion. The motion shall be supported by 10 adequate factual documentation and shall conform in all respects to Federal Rule of Civil 11 Procedure 56, and shall include as exhibits all records and incident reports stemming from the 12 events at issue. If defendant is of the opinion that this case cannot be resolved by summary 13 judgment, he shall so inform the Court prior to the date his summary judgment motion is due. All 14 papers filed with the Court shall be promptly served on the plaintiff. 15 b. At the time the dispositive motion is served, defendant shall also serve, on a 16 separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953- 17 954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 18 See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be 19 given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed, 20 not earlier); Rand at 960 (separate paper requirement). 21 c. Plaintiff’s opposition to the dispositive motion, if any, shall be filed with 22 the Court and served upon defendant no later than thirty days from the date the motion was served 23 upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is 24 provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), 25 and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 26 If defendant files a motion for summary judgment claiming that plaintiff failed to exhaust 27 his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take 1 note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided 2 to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 3 d. If defendant wishes to file a reply brief, they shall do so no later than fifteen 4 || days after the opposition is served upon him. 5 e. The motion shall be deemed submitted as of the date the reply brief is due. 6 || No hearing will be held on the motion unless the Court so orders at a later date. 7 3. All communications by plaintiff with the Court must be served on defendant, or 8 || defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 9 defendant or defendant’s counsel. 10 4. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. ll No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 12 || parties may conduct discovery. 13 5. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court 14 || informed of any change of address by filing a separate paper with the clerk headed “Notice of 15 Change of Address.” He also must comply with the Court’s orders in a timely fashion. Failure to a 16 || do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 3 17 || Civil Procedure 41(b).

S 18 IT IS SO ORDERED.

19 Dated: June 2, 2022 20 21

JAMES ATO

22 United St#tes District Judge 23 24 25 26 27 28

1 2 NOTICE -- WARNING (SUMMARY JUDGMENT) 3 If defendants move for summary judgment, they are seeking to have your case dismissed. 4 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 5 granted, end your case. 6 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 7 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 8 that is, if there is no real dispute about any fact that would affect the result of your case, the party 9 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 10 case. When a party you are suing makes a motion for summary judgment that is properly 11 supported by declarations (or other sworn testimony), you cannot simply rely on what your 12 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 13 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 14 shown in the defendant’s declarations and documents and show that there is a genuine issue of 15 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 16 if appropriate, may be entered against you. If summary judgment is granted, your case will be 17 dismissed and there will be no trial. 18 NOTICE -- WARNING (EXHAUSTION) 19 If defendants file a motion for summary judgment for failure to exhaust, they are seeking 20 to have your case dismissed. If the motion is granted it will end your case. 21 You have the right to present any evidence you may have which tends to show that you did 22 exhaust your administrative remedies. Such evidence may be in the form of declarations 23 (statements signed under penalty of perjury) or authenticated documents, that is, documents 24 accompanied by a declaration showing where they came from and why they are authentic, or other 25 sworn papers, such as answers to interrogatories or depositions. 26 If defendants file a motion for summary judgment for failure to exhaust and it is granted, 27 your case will be dismissed and there will be no trial.