1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALEX ULEP, Case No. 22-cv-02617-HSG

8 Plaintiff, ORDER OF SERVICE 9 v.

10 KATHLEEN ALLISON, et al., 11 Defendants.

12 13 Plaintiff, a prisoner at San Quentin State Prison (“SQSP”), has filed a pro se action 14 pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint (Dkt. No. 1) is now before the Court for 15 screening pursuant to 28 U.S.C. § 1915A. Leave to proceed in forma pauperis is granted in a 16 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 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 7 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 8 alleged violation was committed by a person acting under the color of state law. See West v. 9 Atkins, 487 U.S. 42, 48 (1988). 10 B. Legal Claims 11 Plaintiff alleges that various California Department of Corrections and Rehabilitation 12 (CDCR) defendants and the California Correctional Health Care Services (CCHCS) federal 13 receiver Clark Kelso caused a COVID-19 outbreak at SQSP by transferring 122 prisoners from the 14 California Institution for Men (CIM)1 to SQSP, some of whom were infected with COVID-19, in 15 May 2020. Plaintiff alleges that COVID-19 cases at SQSP went from zero to 340 in 22 days 16 following the transfer. Plaintiff alleges that defendants “botched” the transfer and “ignored 17 virtually every safety measure.” Dkt. No. 1 at 9. He alleges that defendants were aware that 18 SQSP was at greater risk for an outbreak because of the prison’s physical infrastructure, including 19 housing units with open bars and large numbers of prisoners in close proximity, but implemented 20 the transfer from CIM nonetheless. Id. at 16. Plaintiff alleges that defendants ignored the advice 21 of public health experts in conducting the transfer. Id. at 19. Plaintiff alleges that he tested 22 positive for COVID-19 around June 29, 2020. Id. at 9. 23 Plaintiff names the following defendants in their official capacities:2 24 1. Kathleen Allison, CDCR Director 25 2. Ralph Diaz, former CDCR Director 26

27 1 Plaintiff refers to the prison, which is located in Chino, CA, as the “Chino Institution for Men.” 1 3. Ronald Davis, former Associate Director of CDCR Reception Center 2 4. Ron Broomfield, SQSP Warden 3 5. J. Clark Kelso, Federal Receiver 4 6. Allison Pachynski, SQSP Chief Medical Executive Officer 5 7. L. Escobell, CIM Chief Medical Officer 6 8. R. Steven Tharratt, CDCR Medical Director 7 9. Clarence Cryer, SQSP Healthcare Chief Executive Director 8 10. Dean Borders, CIM Warden 9 11. Joseph Bick, CCHCS Director 10 Plaintiff alleges that all defendants were responsible for or participated in decisions related 11 to the transfer, and that their conduct violated his rights under the Eighth Amendment. He seeks 12 compensatory and punitive damages. 13 Liberally construed, plaintiff states an Eighth Amendment claim against all defendants. 14 However, the Court understands, as the Attorney General has represented to another court in this 15 district, that “[t]o the best of [the Attorney General’s] knowledge, [Dr.] Tharratt died on August 16 20, 2020.” See Case No. 3:20-cv-07845-CRB, Dkt. No. 37, 37-1. The Court takes judicial notice 17 pursuant to Federal Rule of Evidence 201 of the filing in that case, which attaches Dr. Tharratt’s 18 obituary published on the California Department of Corrections and Rehabilitation website on 19 October 6, 2020, available at https://www.cdcr.ca.gov/insidecdcr/2020/10/06/dr-robert-tharratt- 20 longtime-cchcs-medical-director-passes-away/. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 21 442 F.3d 741, 746 n.6 (9th Cir. 2006) (federal courts “may take judicial notice of court filings and 22 other matters of public record”); Bullock v. Johnson, No. CV 15-2070 PA (AS), 2018 WL 23 5880736, at *13 n.19 (C.D. Cal. Aug. 10, 2018), report and recommendation adopted, No. CV 15- 24 2070 PA (AS), 2018 WL 4791089 (C.D. Cal. Oct. 3, 2018) (taking judicial notice of CDCR 25 obituary). 26 Dr. Tharratt’s death therefore preceded the filing of this action on April 29, 2022. “[A] 27 party cannot maintain a suit on behalf of, or against, or join, a dead person, or in any other way 1 successor) party to a federal lawsuit.” LN Mgmt., LLC v. JPMorgan Chase Bank, N.A., 957 F.3d 2 943, 955 (9th Cir. 2020). Dr. Tharratt was therefore not an appropriately named defendant at the 3 onset of this litigation and is DISMISSED. 4 CONCLUSION 5 a) Defendant Tharratt is DISMISSED. 6 b) The Court ORDERS that service on the following CDCR Defendants shall proceed 7 under the California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program 8 for civil rights cases from prisoners in the CDCR’s custody: 9 1. Kathleen Allison, CDCR Director 10 2. Ralph Diaz, former CDCR Director 11 3. Ronald Davis, former Associate Director of CDCR Reception Center 12 4. Ron Broomfield, SQSP Warden 13 5. Allison Pachynski, SQSP Chief Medical Executive Officer 14 6. L. Escobell, CIM Chief Medical Officer 15 7. Clarence Cryer, SQSP Healthcare Chief Executive Director 16 8. Dean Borders, CIM Warden 17 9. Joseph Bick, CCHCS Director 18 c) In accordance with the program, the Clerk is directed to serve on the CDCR via 19 email the following documents: the operative complaint (Dkt. No. 1), this Order of Service, a 20 CDCR Report of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of 21 this order on the plaintiff. 22 d) No later than 40 days after service of this order via email on the CDCR, the CDCR 23 shall provide the court a completed CDCR Report of E-Service Waiver advising the court which 24 defendant(s) listed in this order will be waiving service of process without the need for service by 25 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 26 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 27 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 1 e) Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for 2 each defendant who has not waived service according to the CDCR Report of E-Service Waiver a 3 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 4 of this order, the summons and the operative complaint for service upon each defendant who has 5 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 6 Service Waiver. 7 f) The Court ORDERS that service on defendant Clark Kelso shall proceed 8 separately. The Clerk is directed to electronically serve Clark Kelso and his attorney via the email 9 address HCLitigationSupport@cdcr.ca.gov the following documents: the operative complaint 10 (Dkt. No. 1), this Order of Service, and a Waiver of the Service of Summons form. 11 g) No later than 40 days after service of this order via email on defendant Kelso and 12 his attorney, defendant Kelso shall file the Waiver of the Service of Summons or a Notice 13 indicating that he does not waive service. If defendant Kelso files such a notice, the Clerk shall 14 prepare a USM-205 Form and shall provide to the USMS the completed USM-205 form and 15 copies of this order, the summons, and the operative complaint for service upon defendant Kelso. 16 h) All defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 17 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 18 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on 19 behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the 20 cost of such service unless good cause can be shown for their failure to sign and return the waiver 21 form. 22 i) This Court will issue a scheduling order for summary judgment or other dispositive 23 motion briefing, such as a motion to dismiss based on Federal Rule of Civil Procedure 12(b), after 24 resolution of the common issues in the 22-mc-80066-WHO matter. See Docket No. 6. 25 j) All communications by plaintiff with the Court must be served on defendants’ 26 counsel by mailing a true copy of the document to defendants’ counsel. The Court may disregard 27 any document which a party files but fails to send a copy of to his opponent. Until defendants’ 1 defendants, but once defendants are represented by counsel, all documents must be mailed to 2 || counsel rather than directly to defendants. 3 k) Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 4 || Court informed of any change of address and must comply with the Court’s orders in a timely 5 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 6 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 7 pending case every time he is moved to a new facility. 8 1) Any motion for an extension of time must be filed no later than the deadline sought 9 to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 10 || he must include the case name and case number for this case on any document he submits to the 11 Court for consideration in this case. 12 IT IS SO ORDERED.

13 || Dated: 10/26/2022

HAYWOOD S. GILLIAM, JR.

IS United States District Judge 16

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