Hicks v. Secretary, California Department of Corrections and Rehabilitation et al

Filing 9

ORDER OF SERVICE, Motion dismissed without prejudice 7 MOTION for Emergency Restraining Order filed by Michael J. Hicks, Motion granted 4 MOTION to Amend/Correct filed by Michael J. Hicks, the Clerk is instructed to file the proposed amended complaint (ECF No. 5-1) as the FAC. Habeas Answer or Dispositive Motion due by 6/28/2016. Signed by Judge Charles R. Breyer on 4/28/2016. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 4/29/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL J. HICKS, B-80852,
Plaintiff(s),

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v.
SCOTT KERNAN, et al.,
Defendant(s).

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No. C 16-0738 CRB (PR)
ORDER OF SERVICE
(ECF No. 4 & 7)

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On February 12, 2016, while plaintiff was incarcerated at Salinas Valley

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State Prison (SVSP), he filed a pro se complaint under 42 U.S.C. § 1983 alleging

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violations of his federal rights while at Mule Creek State Prison (MCSP) and at

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the R. J. Donovan Correctional Facility (RJD) in 2015.

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On February 19, 2016, plaintiff filed a motion for leave to file an amended

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complaint to add allegations of violations of his federal rights at SVSP too. Good

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cause appearing, plaintiff’s motion (ECF No. 4) is GRANTED and the clerk is

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instructed to file plaintiff’s proposed amended complaint (ECF No. 5-1) as the

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First Amended Complaint (FAC) in this case.

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On February 26, 2016, plaintiff filed a notice of change of address
informing the court that he had been transferred back to MCSP.
Currently before the court for screening and review are plaintiff’s FAC
and a recently-filed motion for a temporary restraining order (TRO).

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which

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prisoners seek redress from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

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claims or dismiss the complaint, or any portion of the complaint, if the complaint

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“is frivolous, malicious, or fails to state a claim upon which relief may be

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granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed, however.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated, and (2) that the alleged violation was committed by a

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person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48

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(1988).

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B.

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Legal Claims
In the operative FAC, plaintiff alleges that he was subjected to deliberate

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indifference to safety and to cruel and unusual punishment in violation of the

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Eighth Amendment while he was incarcerated at MCSP and RJD in 2015, and at

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SVSP in 2016. Specifically, plaintiff alleges that prison officials at MCSP, RJD

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and SVSP were deliberately indifferent to his safety by failing to restrict other

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inmates from accessing unpublished court orders identifying plaintiff as having

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been convicted of a sexual crime and suffering from a sexual disorder, and

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subjected him to cruel and unusual punishment by housing him in their respective

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prison’s administrative segregation unit (ASU) despite plaintiff’s mental illness.

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Plaintiff names as defendants MCSP Warden J. Lizarraga, RJD Associate

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Warden G. Stratton and Warden D. Paramo, and SVSP Warden B. Muniz, and

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generally alleges that they were aware of plaintiff’s predicament and housing at

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their respective prisons. Plaintiff also names as a defendant California

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Department of Corrections and Rehabilitation (CDCR) Secretary S. Kernan, but

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sets forth no allegations connecting him to plaintiff’s allegations of wrongdoing.

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Liberally construed, plaintiff’s allegations appear to state arguably

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cognizable claims for damages under § 1983 for violations of the Eighth

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Amendment against MCSP Warden J. Lizarraga for occurrences at MCSP, RJD

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Associate Warden G. Stratton and Warden D. Paramo for occurrences at RJD,

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and SVSP Warden B. Muniz for occurrences at SVSP. See, e.g., Farmer v.

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Brennan, 511 U.S. 825, 832 (1994) (8th Amendment requires prison officials to

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take reasonable measures to guarantee safety of prisoners).1 But plaintiff cannot

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join all of these defendants and claims in a single suit.

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A plaintiff may properly join as many claims as he has against an

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opposing party. Fed. R. Civ. P. 18(a). But parties may be joined as defendants in

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one action only “if any right to relief is asserted against them jointly, severally, or

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in the alternative with respect to or arising out of the same transaction,

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occurrence, or series of transactions or occurrences; and any question of law or

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fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2).

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Plaintiff’s arguably cognizable claims for damages under § 1983 for violations of

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the Eighth Amendment while he was at MCSP, RJD and SVSP do not satisfy

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Rule 20(a)(2)’s requirements. Plaintiff has not shown that all the named

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Plaintiff does not state even an arguably cognizable claim for damages
under § 1983 against CDCR Secretary Kernan. See generally Lemire v. CDCR,
726 F.3d 1062, 1085 (9th Cir. 2013) (liability may be imposed on individual
defendant under § 1983 only if defendant actually and proximately caused
deprivation of federally protected right).
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defendants at MCSP, RJD and SVSP participated in the same transaction,

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occurrence, or series of transactions or occurrences, and that a question of law or

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fact is common to all defendants. See George v. Smith, 507 F.3d 605, 606-07

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(7th Cir. 2007). Mere similarity in the types of problems plaintiff encountered at

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the three different prisons is not enough to satisfy Rule 20(a)(2) and bring in one

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suit claims with different factual backgrounds against different defendants. See

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Coughlin v. Rogers, 130 F.3d 1348, 1350-51 (9th Cir. 1997).2 This is so not only

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to prevent the sort of morass that this multiple-claim, multiple-defendant suit

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seeks “but also to ensure that prisoners pay the required filing fees – for the

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Prisoner Litigation Reform Act limits to 3 the number of frivolous suits or

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appeals that any prisoner may file without prepayment of the required fees.”

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George, 507 F.3d at 607 (citing 28 U.S.C. § 1915(g)).

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Good cause therefor, the court will dismiss plaintiff’s arguably cognizable

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claims for damages under § 1983 for violations of the Eighth Amendment while

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he was at MCSP and RJD (and corresponding defendants MCSP Warden J.

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Lizarraga, and RJD Associate Warden G. Stratton and Warden D. Paramo)

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without prejudice to bringing in separate actions in the Eastern and Southern

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Districts of California (in whose venue MCSP and RJD lie, respectively) and will

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maintain plaintiff’s arguably cognizable claims for damages under § 1983 for

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violations of the Eighth Amendment at SVSP (which is located within the venue

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of this court) against SVSP Warden B. Muniz in this action.

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Plaintiff’s recently-filed motion for preliminary injunctive relief in the
form of a TRO (ECF No. 7) is DISMISSED without prejudice to bringing in the

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Nor is plaintiff’s mere naming of CDCR Secretary Kernan enough to
satisfy Rule 18(a) because Kernan is not a viable defendant insofar as plaintiff’s
claims for damages are concerned.
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Eastern District of California, where plaintiff is now incarcerated at MCSP. This

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action will be limited to plaintiff’s arguably cognizable claims for damages under

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§ 1983 for violations of the Eighth Amendment at SVSP against SVSP Warden

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B. Muniz.

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CONCLUSION

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For the foregoing reasons, plaintiff’s arguably cognizable claims for

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damages under § 1983 for violations of the Eighth Amendemnt at SVSP will be

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ordered served on SVSP Warden B. Muniz. The clerk accordingly shall issue

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summons and the United States Marshal shall serve, without prepayment of fees,

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copies of the FAC in this matter, all attachments thereto, and copies of this order

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on SVSP Warden R. Muniz. The clerk also shall serve a copy of this order on

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plaintiff.

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As noted, this action will be limited to plaintiff’s claims for damages

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under § 1983 for violations of the Eighth Amendment at SVSP against SVSP

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Warden B. Muniz. All other claims and defendants are dismissed without

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prejudice to bringing in separate suits.

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In order to expedite the resolution of this case, the court orders as follows:
a.

No later than 90 days from the date of this order, defendant

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shall serve and file a motion for summary judgment or other dispositive motion.

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A motion for summary judgment must be supported by adequate factual

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documentation and must conform in all respects to Federal Rule of Civil

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Procedure 56, and must include as exhibits all records and incident reports

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stemming from the events at issue. A motion for summary judgment also must

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be accompanied by a Rand notice so that plaintiff will have fair, timely and

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adequate notice of what is required of him in order to oppose the motion. Woods

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v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand

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v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with

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motion for summary judgment). A motion to dismiss for failure to exhaust

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available administrative remedies (where such a motion, rather than a motion for

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summary judgment for failure to exhaust, is appropriate) must be accompanied

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by a similar notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012);

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Woods, 684 F.3d at 935 (notice requirement set out in Wyatt v. Terhune, 315

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F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 747

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F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with

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motion to dismiss for failure to exhaust available administrative remedies).

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If defendant is of the opinion that this case cannot be resolved by

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summary judgment or other dispositive motion, he shall so inform the court prior

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to the date his motion is due. All papers filed with the court shall be served

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promptly on plaintiff.

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b.

Plaintiff must serve and file an opposition or statement of

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non-opposition to the dispositive motion not more than 28 days after the motion

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is served and filed.

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c.

Plaintiff is advised that a motion for summary judgment

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under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your

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case. Rule 56 tells you what you must do in order to oppose a motion for

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summary judgment. Generally, summary judgment must be granted when there

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is no genuine issue of material fact – that is, if there is no real dispute about any

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fact that would affect the result of your case, the party who asked for summary

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judgment is entitled to judgment as a matter of law, which will end your case.

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When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply

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rely on what your complaint says. Instead, you must set out specific facts in

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declarations, depositions, answers to interrogatories, or authenticated documents,

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as provided in [current Rule 56(c)], that contradicts the facts shown in the

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defendant’s declarations and documents and show that there is a genuine issue of

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material fact for trial. If you do not submit your own evidence in opposition,

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summary judgment, if appropriate, may be entered against you. If summary

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judgment is granted, your case will be dismissed and there will be no trial. Rand

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v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).

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Plaintiff also is advised that a motion to dismiss for failure to exhaust
available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted,

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end your case, albeit without prejudice. You must “develop a record” and

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present it in your opposition in order to dispute any “factual record” presented by

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the defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108,

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1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show

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that you did exhaust your available administrative remedies before coming to

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federal court. Such evidence may include: (1) declarations, which are statements

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signed under penalty of perjury by you or others who have personal knowledge

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of relevant matters; (2) authenticated documents – documents accompanied by a

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declaration showing where they came from and why they are authentic, or other

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sworn papers such as answers to interrogatories or depositions; (3) statements in

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your complaint insofar as they were made under penalty of perjury and they show

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that you have personal knowledge of the matters state therein. In considering a

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motion to dismiss for failure to exhaust, the court can decide disputed issues of

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fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09.

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(The Rand and Wyatt/Stratton notices above do not excuse defendants’

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obligation to serve said notices again concurrently with motions to dismiss for

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failure to exhaust available administrative remedies and motions for summary

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judgment. Woods, 684 F.3d at 935.)

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d.

Defendant must serve and file a reply to an opposition not

more than 14 days after the opposition is served and filed.
e.

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The motion shall be deemed submitted as of the date the

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reply is due. No hearing will be held on the motion unless the court so orders at a

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later date.

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Discovery may be taken in accordance with the Federal Rules of Civil

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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2)

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or Local Rule 16 is required before the parties may conduct discovery.

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All communications by plaintiff with the court must be served on

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defendant, or defendant’s counsel once counsel has been designated, by mailing a

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true copy of the document to defendant or defendant’s counsel.

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep

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the court and all parties informed of any change of address and must comply with

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the court’s orders in a timely fashion. Failure to do so may result in the dismissal

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of this action pursuant to Federal Rule of Civil Procedure 41(b).

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SO ORDERED.

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DATED: April 28, 2016
CHARLES R. BREYER
United States District Judge

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