Conerly et al v. Santa Clara County Board of Supervisors et al

Filing 65

ORDER REGARDING UNSERVED DEFENDANTS AND VACATING BRIEFING SCHEDULE (Illston, Susan) (Filed on 8/25/2017) (Additional attachment(s) added on 8/25/2017: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RODNEY J. CONERLY,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-03168-SI

v.
LAURIE SMITH, et al.,
Defendants.

ORDER REGARDING UNSERVED
DEFENDANTS AND VACATING
BRIEFING SCHEDULE
Re: Dkt. No. 63

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In this pro se prisoner’s civil rights action, Rodney Conerly has sued several defendants for

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deliberate indifference to a risk to his safety while he was housed at the Santa Clara County Jail.

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Three of the five defendants named in his amended complaint have been served with process. On

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July 18, 2017, the court ordered Conerly to provide information to enable the Marshal to serve

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process on the two unserved defendants (i.e., deputies Bernal and Gray) because the Marshal had

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returned the original summonses for them with the following remarks: “‘Unable to locate. Need

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first name or badge number.’” Docket No. 59. Conerly then informed the court that, by making

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inquiries of defense counsel, he had learned the badge numbers and first names for these

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defendants and that Gray was now retired and no longer employed by the County of Santa Clara.

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Docket No. 63. Conerly asked that the court order the Sheriff’s Department to provide a home

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address for Gray and that the court order the Marshal to serve Bernal.

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The court will not order the County of Santa Clara (a non-party) to provide the home

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address of a retiree. Conerly needs to fill out a subpoena and have it served if he wants to try that

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route to obtain an address for Carlton Gray. No later than October 27, 2017, Conerly must

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provide a current address at which Gray may be served with process. There are many ways

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Conerly might attempt to learn this information. For example, he could write to the personnel

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offices of the County of Santa Clara or the Sheriff’s Department to learn how to obtain the current

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address of a retired employee; he could issue subpoenas to those entities for records containing

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Gray’s current address; or he could serve interrogatories on the other defendants to find out if they

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have a current address for Gray. It is Conerly’s obligation, not the court’s, to gather this

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information. In the alternative to providing an address for Gray, Conerly must show cause by that

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same deadline why he has not provided the information needed to locate Gray and serve process

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on him. If Conerly fails to provide sufficient information to enable service of process to be

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accomplished, Gray will be dismissed without prejudice unless Conerly shows cause for his

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failure to provide the information.

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Service of process will be attempted on the other defendant (i.e., deputy Bernal) using the

United States District Court
Northern District of California

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information Conerly has provided.

The clerk shall issue a summons and the United States

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Marshal shall serve, without prepayment of fees, the summons, a copy of the amended complaint,

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and a copy of all the orders in this action upon the Santa Clara County Sheriff’s Deputy Gilbert

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Bernal (badge # 2604), at the Santa Clara County Jail. Deputy Bernal shall file a notice of

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appearance within twenty days after he is served with the summons and amended complaint.

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In light of the need to resolve the service of process problems, the court now VACATES

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the briefing schedule set in the July 18, 2017 order for motions for summary judgment or other

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dispositive motions. Once the service of process problems are resolved, the court will set a new

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briefing schedule so that all the defendants will be on the same briefing schedule if possible.

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When the parties do reach the point where they address the merits, they are reminded to be

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attentive to Conerly’s custodial status at the relevant time. An inmate’ s status affects the analysis

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of his claims because a convicted prisoner’s safety claim arises under the Eighth Amendment to

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the U.S. Constitution, whereas a pretrial detainee’s safety claim arises under the Fourteenth

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Amendment to the U.S. Constitution. Until recently, the standards were considered roughly the

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same under the Eighth and Fourteenth Amendments, see generally Carnell v. Grimm, 74 F.3d 977,

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979 (9th Cir. 1996), but more recently, the two standards have diverged with respect to the mental

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state requirement for a defendant. Under the Eighth Amendment standard applicable to prisoner

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claims, a defendant is deliberately indifferent if he knows that a prisoner faces a substantial risk of
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serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v.

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Brennan, 511 U.S. 825, 837 (1994). The defendant must not only “be aware of facts from which

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the inference could be drawn that a substantial risk of serious harm exists,” but he “must also draw

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the inference.” Id. On the other hand, current Ninth Circuit precedent lowers the mental state

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showing required for a pretrial detainee’s claim. A pretrial detainee must show that a defendant

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“did not take reasonable measures to abate that risk, even though a reasonable officer in the

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circumstances would have appreciated the high degree or risk involved--making the consequences

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of the defendant’s conduct obvious.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th

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Cir. 2016 (en banc), cert. denied, 137 S. Ct. 831 (2017).

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: August 25, 2017
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SUSAN ILLSTON
United States District Judge

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