1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MESSIAH MESSIAH, Case No. 22-cv-02616-JSW

7 Plaintiff,

ORDER OF PARTIAL DISMISSAL

8 v. AND OF SERVICE

9 D. GARCIA LARA, et al., Defendants. 10

11 INTRODUCTION 12 Plaintiff, a California parolee proceeding pro se, filed this civil rights case under 42 U.S.C. 13 § 1983. The operative complaint is the amended complaint. For the reasons discussed below, 14 amended complaint is ordered served upon certain Defendants based upon the alleged use of 15 excessive force. The claims regarding a false incident report are dismissed for failure to state a 16 claim upon which relief may be granted. 17 ANALYSIS 18 A. STANDARD OF REVIEW 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 21 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 22 which 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. Id. at 1915A(b)(1),(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 25 Cir. 1990). 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." "Specific facts are not necessary; the 1 which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 2 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 3 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 4 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 5 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 6 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 7 must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 9 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 10 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 11 487 U.S. 42, 48 (1988). 12 B. LEGAL CLAIMS 13 In his first amended complaint, Plaintiff alleges that in May 2021 at Salinas Valley State 14 Prison Correctional Officers A. Rodriguez, R. Garcia, D. Garcia-Lara, and W. Welch used 15 excessive force on him in violation of the Eighth Amendment. (First Am. Compl., Dkt. No. 13 at 16 4.) He also alleges correctional officers J. Thich and E. Beam witnessed the attack, but failed to 17 intervene. (Id. at 16 and 18.) When liberally construed, Plaintiff has stated Eighth Amendment 18 claims against these Defendants. 19 Plaintiff claims that all the above correctional officers, along with correctional officers A. 20 Andayerde and T. Haner, filed false reports regarding the incident. (Id. at 4.) Filing a false report 21 is not a per se violation of a prisoner’s constitutional rights. Sprouse v. Babcock, 870 F.2d 450, 22 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). But, if an inmate has 23 been subjected to a false disciplinary report, he can state a cognizable civil rights claim when the 24 prisoner alleges that (1) the false disciplinary report was filed in retaliation for her exercise of a 25 constitutional right and (2) he was not afforded procedural due process in a proceeding concerning 26 the false report. See Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997). Plaintiff makes no 27 allegation that he was not afforded procedural due process at the disciplinary hearing. See Wolff v. 1 or a lack of advance written notice and an opportunity to be heard). Accordingly, these claims are 2 not cognizable. 3 CONCLUSION For the reasons set out above, 4 1. Plaintiff’s excessive force claim is cognizable when liberally construed. His false 5 report claims are DISMISSED for failure to state a cognizable claim for relief, and A. Andayerde 6 and T. Haner are TERMINATED as defendants. 7 2. The operative, amended complaint (Dkt. No. 13), and all attachments thereto, shall be 8 served on defendants A. Rodriguez, R. Garcia, D. Garcia-Lara, W. Welch, J. Thich, and E. Beam 9 at Salinas Valley State Prison. 10 Service shall proceed under the California Department of Corrections and Rehabilitation’s 11 (CDCR) e-service program for civil rights cases from litigants in CDCR custody. In accordance 12 with the program, the clerk is directed to serve on CDCR via email the following documents: the 13 Amended Complaint, this Order, a CDCR Report of E-Service Waiver form, and a summons. The 14 clerk also shall serve a copy of this order on the plaintiff. 15 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 16 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 17 listed in this order will be waiving service of process without the need for service by the United 18 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 19 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 20 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of 21 service of process for the defendant(s) who are waiving service. 22 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 23 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 24 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies 25 of this order, the summons, and the operative complaint for service upon each defendant who has 26 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 27 Service Waiver. 1 3. Defendants shall file an answer in accordance with the Federal Rules of Civil 2 Procedure. 3 4. In order to expedite the resolution of this case: 4 a. No later than 63 days from the date this order is filed, the remaining defendant, 5 including those who have been ordered served above, shall file a motion for summary judgment or 6 other dispositive motion. If defendant is of the opinion that this case cannot be resolved by 7 summary judgment, they shall so inform the court prior to the date the summary judgment motion 8 is due. All papers filed with the court shall be promptly served on the plaintiff. 9 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 10 court and served upon defendants no later than 28 days from the date of service of the motion. 11 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him 12 pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. 13 Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 14 c. Defendant shall file a reply brief no later than 14 days after the date of service 15 of the opposition. 16 d. The motion shall be deemed submitted as of the date the reply brief is due. No 17 hearing will be held on the motion unless the court so orders at a later date. 18 e. Along with his motion, defendants shall file proof that they served plaintiff the 19 Rand warning at the same time they served him with their motion. Failure to do so will result in 20 the summary dismissal of their motion. 21 5. All communications by the plaintiff with the court must be served on defendant, or 22 defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 23 defendant or their counsel. 24 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 25 further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required 26 before the parties may conduct discovery. 27 7. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court ] Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 2 || Federal Rule of Civil Procedure 41(b). 3 IT IS SO ORDERED. 4 || Dated: January 3, 2023

/VEFFRY, S. WHITE 7 /United States District Judge 8 9 10 1]

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NOTICE -- WARNING (SUMMARY JUDGMENT)

2 If Defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in Defendant's declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17

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