1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AMBROSIO VILLAGRANA, Case No. 22-cv-02618-JST

8 Plaintiff,

ORDER OF PARTIAL SERVICE;

9 v. DISMISSING CERTAIN DEFENDANTS

WITH LEAVE TO AMEND

10 SCOTT KERNAN, et al.,

Defendants. 11

12 13 Plaintiff, an inmate at Correctional Training Facility in Soledad, California (“CTF- 14 Soledad”), has filed a pro se action pursuant to 42 U.S.C. § 1983. His complaint is now before the 15 Court for review under 28 U.S.C. § 1915A. Plaintiff has been granted leave to proceed in forma 16 pauperis in a separate order. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 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: 8 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 9 the 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 Scott Kernan, the former secretary of the California 13 Department of Corrections and Rehabilitations (“CDCR”); John Doe 1, the former CDCR 14 Secretary of Resources; S. Hatton, the former warden of CTF-Soledad; and John Doe 2, the owner 15 of Stronghold Construction Company. The complaint alleges that Defendants either knowingly or 16 negligently exposed him to Valley Fever when, in or around 2014 to 2019, they authorized the 17 construction of, and built, CTF West Medical Facility despite knowing that CTF-Soledad is in the 18 middle of a Valley Fever hot zone. The complaint makes the following specific allegations. 19 Defendants knew or should have known that CTF-Soledad is in the middle of a Valley Fever hot 20 zone but took the following actions that increased inmates’ exposure to Valley Fever, resulting in 21 Plaintiff contracting Valley Fever. In or about 2014, John Doe 1, the CDCR Secretary of 22 Resources at that time, declared that the West Medical Facility construction project was exempt 23 from the environmental impact phase, despite knowing that the construction work would require 24 soil disturbing work, including excavation and bulldozing. In or about 2016, defendant Hatton, 25 the CTF-Soledad warden at that time, failed to take preventative measures to control the spread of 26 Valley Fever spores to inmates, such as by requesting ground covers, although state employees 27 working the construction site were provided with N95 masks. Between 2016 to 2019, defendant 1 from the construction of West Medical Facility. John Doe 2, owner of the Stronghold 2 Construction Company, which constructed West Medical Facility, failed to implement on the 3 construction sites the safety procedures required by the California Occupational Safety and Health, 4 such as implementing dust control measures. As a result, from 2016 to 2019, CTF Soledad saw a 5 spike in the number of inmates who contracted Valley Fever. 6 Liberally construed, the complaint’s allegations state a cognizable federal constitutional 7 claim for violation of the Eighth Amendment’s prohibition on deliberate indifference to inmate 8 safety and health, and a cognizable state-law claim for failure to protect Plaintiff from, or warn 9 Plaintiff of, a foreseeable threat of harm. See Farmer v. Brennan, 511 U.S. 825, 832 (1994) 10 (prison official is deliberately indifferent if he knows of and disregards excessive risk to inmate 11 health or safety by failing to take reasonable steps to abate it); Giraldo v. Dep’t of Corr. & Rehab., 12 168 Cal.App.4th 231 (Cal. Ct. App. 2008) (there is special relationship between jailer and prisoner 13 that imposes upon jailer duty of care to prisoner). 14 However, Doe Defendants John Doe 1 and John Doe 2 are DISMISSED from this action 15 without prejudice. The use of “John Doe” to identify a defendant is not favored in the Ninth 16 Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), in part because it is 17 effectively impossible for the United States Marshal to serve an anonymous defendant. The 18 Court’s general practice is to dismiss Doe defendants without prejudice and, if the plaintiff is able 19 to identify the unknown defendant through discovery, allow the plaintiff leave to amend the 20 complaint to name the intended defendant. See Gillespie, 629 F.2d at 642. Plaintiff may seek to 21 determine the identity of Doe defendants through discovery and then request leave to amend the 22 complaint to add these Doe defendants. 23 CONCLUSION 24 For the foregoing reasons, the Court orders as follows. 25 1. The following defendant(s) shall be served: former California Department of 26 Corrections and Rehabilitation Secretary Scott Kernan and former Correctional Training Facility 27 Soledad warden S. Hatton. 1 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners 2 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the 3 CDCR via email the following documents: the operative complaint, this order of service, a CDCR 4 Report of E-Service Waiver form and a summons. The Clerk also shall serve a copy of this order 5 on the Plaintiff. 6 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 7 provide the court a completed CDCR Report of E-Service Waiver advising the court which 8 defendant(s) listed in this order will be waiving service of process without the need for service by 9 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 10 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 11 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 12 a waiver of service of process for the defendant(s) who are waiving service. 13 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 14 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 15 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 16 of this order, the summons, and the operative complaint for service upon each defendant who has 17 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 18 Service Waiver. 19 2. Doe Defendants John Doe 1 and John Doe 2 are DISMISSED from this action 20 without prejudice to Plaintiff requesting leave to amend the complaint to add these Doe defendants 21 once he determines their identities. 22 3. In order to expedite the resolution of this case, the Court orders as follows: 23 a. No later than 91 days from the date this order is filed, Defendants must file 24 and serve a motion for summary judgment or other dispositive motion. If Defendants are of the 25 opinion that this case cannot be resolved by summary judgment, Defendants must so inform the 26 Court prior to the date the motion is due. A motion for summary judgment also must be 27 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what 1 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 2 served concurrently with motion for summary judgment).1 3 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 4 must be filed with the Court and served upon Defendants no later than 28 days from the date the 5 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 6 provided later in this order as he prepares his opposition to any motion for summary judgment. 7 c. Defendants shall file a reply brief no later than 14 days after the date the 8 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 9 hearing will be held on the motion. 10 4. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 11 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 12 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 13 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 14 any fact that would affect the result of your case, the party who asked for summary judgment is 15 entitled to judgment as a matter of law, which will end your case. When a party you are suing 16 makes a motion for summary judgment that is properly supported by declarations (or other sworn 17 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 18 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 19 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and 20 documents and show that there is a genuine issue of material fact for trial. If you do not submit 21 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 22 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 23 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 24 25 1 If Defendants assert that Plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), Defendants 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 not excuse Defendants’ obligation to serve said notice again concurrently with a motion for 2 summary judgment. Woods, 684 F.3d at 939). 3 5. All communications by Plaintiff with the Court must be served on Defendants’ 4 || counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard 5 any document which a party files but fails to send a copy of to his opponent. Until Defendants’ 6 || counsel has been designated, Plaintiff may mail a true copy of the document directly to 7 Defendants, but once Defendants are represented by counsel, all documents must be mailed to 8 counsel rather than directly to Defendants. 9 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 10 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 11 before the parties may conduct discovery. 12 7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 13 || Court informed of any change of address and must comply with the Court’s orders in a timely 14 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 3 15 to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 16 || pending case every time he is moved to a new facility. 3 17 8. Any motion for an extension of time must be filed no later than the deadline sought 18 to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 19 || he must include the case name and case number for this case on any document he submits to the 20 || Court for consideration in this case. 21 IT IS SO ORDERED. 22 Dated: June 13, 2022 . .

2 JON S. TIGAR 24 nited States District Judge 25 26 27 28