Keller v. N.K.S.P.

Filing 55

SCHEDULING ORDER ; ORDER DIRECTING Clerk to Re-send copy of its September 16, 2016 Order 23 ; ORDER DENYING 48 Motion for Extension of Time as Moot, signed by Magistrate Judge Erica P. Grosjean on 06/13/17. (Status Conference set for 9/25/2017 at 01:30 PM in Courtroom 10 (EPG) before Magistrate Judge Erica P. Grosjean) (Attachments: # 1 Order Number 23)(Martin-Gill, S)

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Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 1 of 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN KELLER, 12 Plaintiff, 13 ORDER FINDING COGNIZABLE CLAIMS vs. 14 NKSP WARDEN, et al., 15 Defendants. 16 17 18 19 20 ORDER FOR THIS CASE TO PROCEED AGAINST THE OFFICE OF CORRECTIONAL SAFETY, THE INSTITUTIONAL GANG INVESTIGATOR, SERGEANT M. WEST, G. GARRETT, AND JOHN DOES FOR VIOLATION OF THE EIGHTH AMENDMENT BASED ON CONDITIONS OF CONFINEMENT AND DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS AND FOR VIOLATION OF THE FOURTEENTH AMENDMENT BASED ON LACK OF DUE PROCESS ORDER FINDING FIRST AMENDED COMPLAINT APPROPRIATE FOR SERVICE AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS (Doc. 22.) 21 22 23 24 THIRTY DAY DEADLINE 25 26 1:16-cv-00613-EPG-PC I. BACKGROUND 27 John Keller (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 28 with this civil rights action pursuant to 42 U.S.C. § 1983. On May 2, 2016, Plaintiff filed the 1 Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 2 of 12 1 Complaint commencing this action. (ECF No. 1.) On May 17, 2016, this Court issued an order 2 finding cognizable claims against Defendant Institutional Gang Investigator for adverse 3 conditions of confinement under the Eighth Amendment and violation of due process under the 4 Fourteenth Amendment, and dismissing other claims with leave to amend. (ECF No. 11) 5 Plaintiff filed a First Amended Complaint on June 24, 2016, which is before this Court for 6 screening. (ECF No. 22)1 7 Plaintiff has alleged that he was wrongly placed in solitary confinement based on a false 8 gang violation for six and a half years, and that he suffered mental illness as a result. He also 9 alleges that he was denied medical care for his mental illness. The Court has screened 10 Plaintiff’s First Amended Complaint and is allowing it to go forward and be served on the 11 defendants named in Plaintiff’s complaint. 12 The next step is for Plaintiff to fill out certain forms that are described in this order and 13 return them to the Court in thirty days to allow the Court, through the US Marshalls, to serve 14 this complaint on Defendants. Defendants will then respond to the complaint and the Court 15 will issue an order after that time describing how to go forward with the case. 16 II. SCREENING REQUIREMENT 17 The Court is required to screen complaints brought by prisoners seeking relief against a 18 governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 19 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 20 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 21 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 22 ' 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 23 24 25 1 26 27 28 On May 11, 2016, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (ECF No. 7.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 2 Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 3 of 12 1 paid, the court shall dismiss the case at any time if the court determines that the action or 2 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. ' 1915(e)(2)(B)(ii). 3 A complaint is required to contain “a short and plain statement of the claim showing 4 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 5 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are 8 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 9 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 10 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to 11 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. 12 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls 13 short of meeting this plausibility standard. Id. While factual allegations are accepted as true, 14 legal conclusions are not. Id. 15 III. SUMMARY OF COMPLAINT 16 The events at issue in the Complaint allegedly occurred at North Kern State Prison 17 (NKSP) in Delano, California, when Plaintiff was incarcerated there in the custody of the 18 California Department of Corrections and Rehabilitation (CDCR). 19 defendants the Office of Correctional Safety, the Institutional Gang Investigator (IGI), M. 20 West, correctional officer G. Garrett, and John Does IGI Supervisors. (“Defendants”). 21 Plaintiff’s factual allegations follow. Plaintiff names as 22 Plaintiff alleges that the IGI, acting on direction from their superior supervisors, held 23 Plaintiff in isolation and solitary confinement for six and a half years on false gang validation 24 charges. Plaintiff suffered mental health issues and emotional distress. Plaintiff attempted 25 suicide three times. He now suffers from permanent mental health issues of schizophrenic 26 paranoia and psychotic behavior, among others. 27 28 Plaintiff alleges cruel and unusual punishment and deliberate indifference to his mental health care, and lack of due process. 3 Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 4 of 12 1 IV. PLAINTIFF=S CLAIMS 2 The Civil Rights Act under which this action was filed provides: 3 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 4 5 6 7 42 U.S.C. § 1983. 8 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 9 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 10 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman 11 v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 12 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 13 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 14 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 15 under color of state law, and (2) the defendant deprived him of rights secured by the 16 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 17 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 18 “under color of state law”). A person deprives another of a constitutional right, “within the 19 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 20 omits to perform an act which he is legally required to do that causes the deprivation of which 21 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 22 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 23 causal connection may be established when an official sets in motion a ‘series of acts by others 24 which the actor knows or reasonably should know would cause others to inflict’ constitutional 25 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 26 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 27 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 28 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 4 Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 5 of 12 1 A. 2 “It is undisputed that the treatment a prisoner receives in prison and the conditions 3 under which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” 4 Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 5 (1994). Conditions of confinement may, consistent with the Constitution, be restrictive and 6 harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 7 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. 8 Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, 9 provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” 10 Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other 11 grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 12 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 13 642 F.2d 1129, 1132-33 (9th Cir. 1981). Eighth Amendment—Conditions of Confinement 14 When determining whether the conditions of confinement meet the objective prong of 15 the Eighth Amendment analysis, the Court must analyze each condition separately to determine 16 whether that specific condition violates the Eighth Amendment. See Toussaint, 801 F.2d at 17 1107; Hoptowit, 682 F.2d at 1246-47; Wright, 642 F.2d at 1133. 18 confinement may establish an Eighth Amendment violation ‘in combination’ when each would 19 not do so alone, but only when they have a mutually enforcing effect that produces the 20 deprivation of a single, identifiable human need such as food, warmth, or exercise – for 21 example, a low cell temperature at night combined with a failure to issue blankets.” Wilson v. 22 Seiter, 501 U.S. 294, 304 (1991); see also Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 23 2010); Osolinski, 92 F.3d at 938-39; Toussaint, 801 F.2d at 1107; Wright, 642 F.2d at 1133. 24 When considering the conditions of confinement, the Court should also consider the amount of 25 time to which the prisoner was subjected to the condition. See Hutto v. Finney, 437 U.S. 678, 26 686-87 (1978); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005); Hoptowit, 682 F.2d at 27 1258. As to the subjective prong of the Eighth Amendment analysis, prisoners must establish 28 prison officials’ “deliberate indifference” to unconstitutional conditions of confinement to 5 “Some conditions of Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 6 of 12 1 establish an Eighth Amendment violation. See Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 2 303. This Court has found that “placement of seriously mentally ill inmates in the harsh, 3 restrictive and non-therapeutic conditions of California's administrative segregation units for 4 non-disciplinary reasons for more than a minimal period necessary to effect transfer to 5 protective housing or a housing assignment violates the Eighth Amendment.” Coleman v. 6 Brown, 28 F. Supp. 3d 1068, 1099 (E.D.Cal. 2014). 7 Based on Plaintiff’s allegations that he was held in isolation, despite mental illness, for 8 non-disciplinary reasons from September 3, 2008 until May 7, 2015, the Court finds that 9 Plaintiff states a claim for violation of the Eighth Amendment based on conditions of 10 confinement. 11 B. 12 The Eighth Amendment of the United States Constitution entitles Plaintiff to medical 13 care, but it is violated only when a prison official acts with deliberate indifference to an 14 inmate's serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), 15 overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); 16 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 17 (9th Cir. 2006). Eighth Amendment—Deliberate Indifference to Medical Needs 18 Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat 19 [his] condition could result in further significant injury or the unnecessary and wanton 20 infliction of pain,” and (2) that “the defendant's response to the need was deliberately 21 indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). 22 Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a 23 prisoner's pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 24 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective 25 recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 26 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122. 27 Plaintiff alleges that Defendants denied him access to mental health care and that such 28 denial was motivated with malice with intent to force Plaintiff to debrief. Although Plaintiff’s 6 Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 7 of 12 1 allegations are brief and lack specificity, liberally construed, Plaintiff states a claim for 2 deliberate indifference to serious medical needs in violation of the Eighth Amendment. 3 C. 4 The Due Process Clause of the Fourteenth Amendment protects prisoners from being 5 deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 6 539, 556 (1974). The procedural guarantees of the Fifth and Fourteenth Amendments’ Due 7 Process Clauses apply only when a constitutionally protected liberty or property interest is at 8 stake. See Ingraham v. Wright, 430 U.S. 651, 672-73 (1977); Bd. of Regents v. Roth, 408 U.S. 9 564, 569 (1972); Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003); Neal v. Shimoda, 131 10 F.3d 818, 827 (9th Cir. 1997); Erickson v. United States, 67 F.3d 858, 861 (9th Cir. 1995); 11 Schroeder v. McDonald, 55 F.3d 454, 462 (9th Cir. 1995); Tellis v. Godinez, 5 F.3d 1314, 1316 12 (9th Cir. 1993). Due Process 13 Liberty interests can arise both from the Constitution and from state law. 14 Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Hewitt v. Helms, 459 U.S. 460, 466 (1983). 15 The Due Process Clause itself does not confer on inmates a liberty interest in avoiding Amore 16 adverse conditions of confinement.@ Id. The Due Process Clause itself does not confer on 17 inmates a liberty interest in being confined in the general prison population instead of 18 administrative segregation. See Hewitt, 459 U.S. at 466-68; see also May v. Baldwin, 109 F.3d 19 557, 565 (9th Cir. 1997) (convicted inmate’s due process claim fails because he has no liberty 20 interest in freedom from state action taken within sentence imposed and administrative 21 segregation falls within the terms of confinement ordinarily contemplated by a sentence) 22 (quotations omitted); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (plaintiff=s 23 placement and retention in the SHU was within range of confinement normally expected by 24 inmates in relation to ordinary incidents of prison life and, therefore, plaintiff had no protected 25 liberty interest in being free from confinement in the SHU) (quotations omitted). See 26 With respect to liberty interests arising from state law, the existence of a liberty interest 27 created by prison regulations is determined by focusing on the nature of the deprivation. 28 Sandin, 515 U.S. at 481-84. Liberty interests created by prison regulations are limited to 7 Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 8 of 12 1 freedom from restraint which “imposes atypical and significant hardship on the inmate in 2 relation to the ordinary incidents of prison life.” Id. at 484; see also Myron v. Terhune, 476 3 F.3d 716, 718 (9th Cir. 2007); Jackson, 353 F.3d at 755; Serrano v. Francis, 345 F.3d 1071, 4 1078 (9th Cir. 2003); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). When conducting 5 the Sandin inquiry, Courts should look to Eighth Amendment standards as well as the 6 prisoners’ conditions of confinement, the duration of the sanction, and whether the sanctions 7 will affect the length of the prisoners’ sentence. See Serrano, 345 F.3d at 1078; Ramirez, 334 8 F.3d at 861; Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996). The placement of an inmate 9 in the SHU indeterminately may amount to a deprivation of a liberty interest of “real 10 substance” within the meaning of Sandin. See Wilkinson, 545 U.S. at 224. The “atypicality” 11 prong of the analysis requires not merely an empirical comparison, but turns on the importance 12 of the right taken away from the prisoner. See Carlo v. City of Chino, 105 F.3d 493, 499 (9th 13 Cir. 1997). A plaintiff must assert a “dramatic departure” from the standard conditions of 14 confinement before due process concerns are implicated. Sandin, 515 U.S. at 485–86; see also 15 Keenan, 83 F.3d at 1088–89. 16 Plaintiff alleges that he is mentally challenged and was held in solitary confinement for 17 more than six years on false charges that he was a gang associate. While Plaintiff has not 18 described in detail the conditions of his confinement in segregation, it is sufficient that he 19 alleges he was detained in isolation for more than six years on false charges. It is true that 20 “[s]ome conditions of confinement may establish an Eighth Amendment violation ‘in 21 combination’ when each would not do so alone.” Chappell v. Mandeville 706 F.3d 1052, 1061 22 (9th Cir. 2013) (citing Wilson, 501 U.S. at 304). Plaintiff alleges that he suffers from severe 23 and lasting mental health issues as a result of his detention. Based on these allegations, the 24 Court finds that Plaintiff’s detention was a “dramatic departure” from the standard conditions 25 of confinement, and therefore Plaintiff had a liberty interest in avoiding his detention. 26 The assignment of validated gang members to the SHU is an administrative measure 27 rather than a disciplinary measure, and is Aessentially a matter of administrative segregation.@ 28 Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (quoting Munoz v. Rowland, 104 F.3d 8 Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 9 of 12 1 1096, 1098 (9th Cir. 1997)). As such, Plaintiff is entitled to the minimal procedural protections 2 set forth in Toussaint, such as notice, an opportunity to be heard, and periodic review. Bruce, 3 351 F.3d at 1287 (citing Toussaint, 801 F.2d at 1100). Due process also requires that there be 4 an evidentiary basis for the prison officials’ decision to place an inmate in segregation for 5 administrative reasons. Superintendent v. Hill, 472 U.S. 445, 455 (1985); Toussaint, 801 F.2d 6 at 1104-05. This standard is met if there is "some evidence" from which the conclusion of the 7 administrative tribunal could be deduced. Id. at 1105. 8 stringent” and the relevant inquiry is whether there is any evidence in the record that could 9 support the conclusion reached by the prison decision-makers. Cato v. Rushen, 824 F.2d 703, The standard is only “minimally The “some evidence” standard applies to an inmate’s placement in the 10 705 (9th Cir.1987). 11 SHU for gang affiliation. See Bruce, 351 F.3d at 1287-88. 12 When a prisoner is placed in administrative segregation, prison officials must, within a 13 reasonable time after the prisoner’s placement, conduct an informal, non-adversary review of 14 the evidence justifying the decision to segregate the prisoner. See Hewitt, 459 U.S. at 476, 15 abrogated in part on other grounds by Sandin, 515 U.S. 472 (1995); Mendoza v. Blodgett, 960 16 F.2d 1425, 1430 (9th Cir. 1992), abrogated in part on other grounds by Sandin, 515 U.S. 472; 17 Toussaint, 801 F.2d at 1100, abrogated in part on other grounds by Sandin, 515 U.S. 472. The 18 Supreme Court has stated that five days is a reasonable time for the post-placement review. 19 See Hewitt, 459 U.S. at 477. Before the review, the prisoner must receive some notice of the 20 charges and be given an opportunity to respond to the charges. See id. at 476; Mendoza, 960 21 F.2d at 1430-31; Toussaint, 801 F.2d at 1100. The prisoner, however, is not entitled to 22 “detailed written notice of charges, representation of counsel or counsel-substitute, an 23 opportunity to present witnesses, or a written decision describing the reasons for placing the 24 prisoner in administrative segregation.” Toussaint, 801 F.2d at 1100-01 (citations omitted). 25 After the prisoner has been placed in administrative segregation, prison officials must 26 periodically review the initial placement. See Hewitt, 459 U.S. at 477 n.9; Toussaint, 801 F.2d 27 at 1101. Annual review of the placement is insufficient. See Toussaint, 801 F.2d at 1101. 28 Plaintiff alleges that he is not a gang member, and that he was put in solitary 9 Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 10 of 12 1 confinement “because of my reading material of afrocentric literature.” Liberally construed, 2 these allegations are sufficient to state a cognizable claim for violation of Plaintiff’s rights to 3 due process in violation of the Fourteenth Amendment. 4 V. APPROPRIATE DEFENDANTS 5 Plaintiff’s list of Defendants includes Institutions: Institutional Gang Investigator and 6 the Office of Correctional Safety at Sacramento; specific individual defendants: Sgt M. West 7 and G. Garrett; and Doe Defendants: I.G.I. Supervisors. Plaintiff’s factual allegations do not 8 describe how specific individuals made the decision to place Plaintiff in solitary confinement or 9 deny him medical care. Plaintiff indicates that “I do not no [sic] the personal names of the John 10 Doe’s but CDC office of Correctional Safety.” 11 While the Court would prefer to have more detailed allegations against specific 12 defendants in order to assess each claim against them individually, the Court understands that 13 Plaintiff is likely not aware of the specific persons involved at this time. Plaintiff amended his 14 named Defendants in response to the Court’s first screening order, including removal of the 15 warden, and provides greater detail in this amended complaint. The Court will allow this 16 complaint to proceed against the listed defendants at this time, but expects that further 17 clarification of the appropriate defendants will be done after the Defendants have appeared and 18 provided discovery or clarification as to their role. The Court is not determining at this time 19 that the named Defendants are the correct ones for each of Plaintiff’s claims. But the Court 20 believes that Plaintiff’s First Amended Complaint sufficiently states a claim against these 21 defendants to go forward to the next stage. 22 The Court also notes that unidentified, or "John Doe" defendants must be named or 23 otherwise identified before service can go forward. AAs a general rule, the use of >John Doe= to 24 identify a defendant is not favored.@ Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 25 Plaintiff is advised that John Doe defendants cannot be served by the United States Marshal 26 until Plaintiff has identified them as actual individuals and amended his complaint to substitute 27 names for John Doe or Jane Doe. For service to be successful, the Marshal must be able to 28 identify and locate defendants. 10 Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 11 of 12 1 Therefore, the Court is allowing Plaintiff’s complaint regarding John Does to go 2 forward at this time, but will require Plaintiff to identify specific individuals as the litigation 3 proceeds and before those individuals can be served. 4 VI. CONCLUSION AND ORDER 5 The Court finds that Plaintiff’s Complaint states cognizable claims for violation of the 6 Eighth Amendment based on conditions of confinement and deliberate indifference to serious 7 medical needs, as well as for violation of the Fourteenth Amendment for lack of due process in 8 deprivation of a liberty interest. 9 The Court will allow these claims to go forward against Defendants Office of 10 Correctional Safety, Institutional Gang Investigator, Sergeant M. West, correctional officer G. 11 Garrett, and John Does IGI Supervisors. It is likely that there will be further clarification of the 12 appropriate defendants for each claim as the case continues, based on information from 13 Defendants. 14 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 15 1. This action now proceeds on the First Amended Complaint, dated June 24, 2016 16 (ECF No. 22), for violation of the Eighth Amendment based on conditions of 17 confinement and deliberate indifference to serious medical needs, as well as for 18 violation of the Fourteenth Amendment for lack of due process in deprivation of 19 a liberty interest. These claims are asserted against the following defendants: 20 Office of Correctional Safety, Institutional Gang Investigator, Sergeant M. 21 West, correctional officer, G. Garrett, and John Does IGI Supervisors; 22 2. Service is appropriate for the following defendants: 23 The Office of Correctional Safety 24 Institutional Gang Investigator 25 Sergeant M. West, correctional officer at North Kern State Prison 26 G. Garrett, correctional officer, North Kern State Prison 27 28 11 Case 1:16-cv-00613-AWI-EPG Document 23 Filed 09/16/16 Page 12 of 12 1 3. The Clerk shall send Plaintiff four (4) USM-285 forms, four (4) summonses, a 2 Notice of Submission of Documents form, an instruction sheet, and a copy of 3 the First Amended Complaint filed on June 24, 2016 (Doc. 22); 4 4. Within thirty (30) days from the date of this order, Plaintiff shall complete the 5 attached Notice of Submission of Documents and submit the completed Notice 6 to the Court with the following documents: 7 a. Completed summonses; 8 b. Completed USM-285 forms for each of the four defendants; and 9 c. Five (5) copies of the endorsed First Amended Complaint filed on June 10 24, 2016 (Doc. 22); 11 5. Plaintiff need not attempt service on defendants and need not request 12 waiver of service. Upon receipt of the above-described documents, the 13 Court will direct the United States Marshal to serve the above-named 14 defendants pursuant to Federal Rule of Civil Procedure 4 without 15 payment of costs; and 16 6. The failure to comply with this order will result in the dismissal of this action. 17 18 19 IT IS SO ORDERED. Dated: September 15, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 12

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