Mathis v. Alameda County et al

Filing 11

ORDER OF SERVICE; PARTIAL DISMISSAL AND ADRESSING PLAINTIFF'S PENDING MOTIONS re 6 MOTION to Amend/Correct 1 Complaint and 8 MOTION to Amend/Correct 1 Complaint, filed by Cardell Van Mathis. Signed by Magistrate Judge Donna M. Ryu on 9/15/14. (ig, COURT STAFF) (Filed on 9/15/2014). Signed by Judge Magistrate Judge Donna M. Ryu on 9/15/14. (Attachments: # 1 Certificate/Proof of Service)(igS, COURT STAFF) (Filed on 9/15/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CARDELL VAN MATHIS,
Plaintiff,

United States District Court
For the Northern District of California

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No. C 14-1966 DMR (PR)
ORDER OF SERVICE; PARTIAL
DISMISSAL; AND ADDRESSING
PLAINTIFF'S PENDING MOTIONS

vs.
ALAMEDA COUNTY SHERIFF'S DEPUTY
D. MILLS,
Defendant.

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Plaintiff, who is currently incarcerated at the Santa Rita Jail ("SRJ") in Alameda County, has

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filed a pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate

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judge jurisdiction, and this matter has been assigned to the undersigned Magistrate Judge.
His motion for leave to proceed in forma pauperis will be granted in a separate written

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Order.
Venue is proper because the events giving rise to the claims are alleged to have occurred at
SRJ, which is located in this judicial district. See 28 U.S.C. § 1391(b).
In his complaint, Plaintiff names the following Defendants: Alameda County Sheriff's

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Deputy/Intake Officer Dalton; U.S. Security Associates Security Guards Veronica Mora and

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Michael Toy; Safeway Grocery; San Leandro Police Officer Justin Blankinship #351; Sergeant R.

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MacIntire; and Lt. Nobriga #1355. Plaintiff seeks monetary damages.

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Plaintiff requests the Court to appoint counsel to represent him in this action. Dkt. 1 at 3.

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Plaintiff has also filed a request for leave to amend the complaint to replace Defendant Dalton with

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Deputy D. Mills and to add Plaintiff Arage Hayes to this action (Dkt. 6 at 4) as well as a request for
leave to amend the complaint to add various additional claims (Dkts. 6, 8). Plaintiff's requests for

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leave to amend the complaint are GRANTED in part and DENIED in part, as specified below.

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DISCUSSION
I.

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Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that

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are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings

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must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

United States District Court
For the Northern District of California

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487

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U.S. 42, 48 (1988).

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II.

Legal Claims

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A.

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Plaintiff alleges that on November 2, 2013, Defendant Mills, who worked as an intake officer

Excessive Force Claim

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at SRJ, used excessive force when he handcuffed Plaintiff behind his back and twisted his left index

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finger until it broke. Dkt. 1 at 3; Dkt. 6 at 3.1 The Court notes that because Plaintiff was a post-

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arrest, pre-arraignment detainee at the time of the incident, Defendant Mills's alleged use of force is

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governed by the Fourth Amendment. See Pierce v. Multnomah County, Or., 76 F.3d 1032, 1043

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(9th Cir. 1996); cf. Graham v. Connor, 490 U.S. 386, 395 n.10. (1989) (post-arraignment pretrial

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detainee protected from use of excessive force by Due Process Clause of Fourteenth Amendment).

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Liberally construed, Plaintiff's allegations state a cognizable excessive force claim against

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Defendant Mills.

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Plaintiff initially named Defendant Dalton as the officer who broke his finger, dkt. 1 at 3;
however, Plaintiff has since requested the Court for leave to amend his complaint to add "Deputy D.
Mills" as "he was the deputy that broke my finger," dkt. 6 at 3. Plaintiff's motion for leave to amend
his complaint to replace Defendant Dalton and add Defendant Mills is GRANTED. Dkt. 6.
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B.

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Plaintiff also contends that Defendant Mills placed him in "isolation for more than 15 hrs."

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Isolation

Dkt. 1 at 3.
As mentioned above, Petitioner was a pretrial detainee at the time of the alleged incident.

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Thus, this claim arises under the Fourteenth Amendment's Due Process Clause rather than the Eighth

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Amendment's Cruel and Unusual Punishment Clause because he was a pretrial detainee. However,

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even though pretrial detainees' claims arise under the Due Process Clause, the Eighth Amendment

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serves as a benchmark for evaluating those claims. See Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir.

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1996) (Eighth Amendment guarantees provide minimum standard of care for pretrial detainees). A

United States District Court
For the Northern District of California

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prison or jail official violates the Eighth Amendment when two requirements are met: (1) the

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deprivation alleged must be, objectively, sufficiently serious, and (2) the prison official possesses a

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sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Here, given that

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Plaintiff was only in the isolation unit for fifteen hours, such an allegation is insufficient to state a

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plausible claim that his Eighth Amendment rights were violated.

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Accordingly, this claim under the Fourteenth Amendment's Due Process Clause is
DISMISSED for failure to state a cognizable claim for relief.

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C.

Claims Relating to the Grievance Process

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Plaintiff alleges that Defendants MacIntire and Nobriga denied his grievances. Although

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there is a First Amendment right to petition government for redress of grievances, there is no right to

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a response or any particular action. See Flick v. Alba, 932 F.2d 728 (8th Cir. 1991) ("prisoner's right

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to petition the government for redress . . . is not compromised by the prison's refusal to entertain his

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grievance."). Plaintiff has therefore failed to state a claim against Defendants MacIntire and

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Nobriga. Accordingly, Plaintiff's claim against Defendants MacIntire and Nobriga relating to the

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grievance process is DISMISSED with prejudice.

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D.

Improperly Joined Claims

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Plaintiff's remaining claims are as follows: (1) the November 23, 2013 incident involving

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Defendants Mora and Toy's alleged use of force near the Safeway Grocery at 699 Lewelling Blvd. in

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San Leandro; and (2) Defendant Blankinship's failure to return Plaintiff's vehicle after the incident
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on November 23, 2013. Dkt. 1 at 3. Federal Rule of Civil Procedure 20(a) provides that all persons

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may be joined in one action as defendants if "any right to relief is asserted against them jointly,

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

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series of transactions or occurrences" and if "any question of law or fact common to all defendants

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will arise in the action." The Defendants listed directly above are involved in a November 23, 2013

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cause of action that is unrelated to the use of excessive force incident involving Defendant Mills on

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November 2, 2013. These claims are not based on the same transaction or occurrence or series of

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transactions and occurrences; and there are not questions of law or fact common to all of the

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defendants. The Defendants listed above do not satisfy the joinder requirements under Rule 20(a)(2)

United States District Court
For the Northern District of California

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with the excessive force claim against Defendant Mills. The improper joinder problem can be

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solved by merely dismissing the improperly joined parties. See Fed. R. Civ. P. 21. Accordingly, the

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Court dismisses Defendants Mora, Toy, Safeway Grocery, and Blankinship from this action. The

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dismissal of these improperly joined parties is without prejudice to Plaintiff filing a new action

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asserting claims against them in state or federal court.
Similarly, the Court DENIES Plaintiff's request for leave to amend the complaint to add the

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following improperly joined claims relating to: (1) SRJ officials' failure to issue bars of soap and

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cleaning supplies to inmates (dkt. 6 at 3-4); (2) SRJ officials' "overt racist [actions] and

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discrimination" for forcing black inmates to listen to "music that[']s not for [them]" (id. at 4); and

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(3) Dr. D. Moore's and Corizon Health Care Service's denial of Plaintiff's request for an extra

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mattress (dkt. 8 at 1-2). Again, Plaintiff may choose to pursue these claims in new actions asserting

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such claims against the relevant persons in state or federal court.

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IV.

Plaintiff Arage Hayes
Plaintiff request for leave to amend the complaint to add inmate Arage Hayes as a Plaintiff in

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this action is DENIED. Dkt. 6 at 4. Plaintiff is proceeding pro se and in that status he cannot

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represent anyone other than himself. See Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962)

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("[A] litigant appearing in propria persona has no authority to represent anyone other than himself").

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V.

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Motion to Appoint Counsel
Plaintiff's motion to appoint counsel (dkt. 1 at 3) is DENIED without prejudice. The
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decision to request counsel to represent an indigent litigant under § 1915 is within "the sound

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discretion of the trial court and is granted only in exceptional circumstances." Franklin v. Murphy,

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745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the "exceptional circumstances" of the plaintiff

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seeking assistance requires an evaluation of the likelihood of the plaintiff's success on the merits and

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an evaluation of the plaintiff's ability to articulate his claims pro se in light of the complexity of the

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legal issues involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir.

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2004). Neither the need for discovery, nor the fact that the pro se litigant would be better served

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with the assistance of counsel, necessarily qualify the issues involved as complex. See Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Plaintiff has not shown that exceptional

United States District Court
For the Northern District of California

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circumstances exist in this case.
CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Plaintiff's allegations state a cognizable excessive force claim against Defendant

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Mills. The Court GRANTS Plaintiff's motion for leave to amend the complaint to replace Defendant

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Dalton with Defendant Mills; therefore, all claims against Defendant Dalton are DISMISSED.

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2.

Plaintiff's claim that Defendant Mills placed him in isolation unit for fifteen hours is

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insufficient to state a plausible claim that his rights were violated; therefore, it is DISMISSED for

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failure to state a cognizable claim for relief.

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3.

Plaintiff's claim against Defendants MacIntire and Nobriga relating to the grievance

process is DISMISSED with prejudice.
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Plaintiff's claims against Defendants Mora, Toy, Safeway Grocery, and Blankinship

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are DISMISSED from this action. The dismissal of these improperly joined parties is without

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prejudice to Plaintiff filing a new action asserting claims against them in state or federal court.

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5.

Plaintiff's requests for leave to amend the complaint is GRANTED in part and

DENIED in part, as specified above.

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6.

Plaintiff's motion to appoint counsel (dkt. 1 at 3) is DENIED without prejudice.

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7.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and
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all attachments thereto (dkt. 1), a Magistrate Judge jurisdiction consent form, and a copy of this

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Order to: Alameda County Sheriff's Deputy/Intake Officer D. Mills. The Clerk of the Court shall

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also mail a copy of the complaint and a copy of this Order to the Alameda County Counsel's Office.

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Additionally, the Clerk shall mail a copy of this Order to Plaintiff.

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8.

Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires

Defendant to cooperate in saving unnecessary costs of service of the summons and complaint.

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Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the Court, on behalf

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of Plaintiff, to waive service of the summons, fails to do so, Defendant will be required to bear the

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cost of such service unless good cause be shown for Defendant's failure to sign and return the waiver

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United States District Court
For the Northern District of California

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form. If service is waived, this action will proceed as if Defendant had been served on the date that

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the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be required to serve

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and file an answer before sixty (60) days from the date on which the request for waiver was sent.

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(This allows a longer time to respond than would be required if formal service of summons is

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necessary.) Defendant is asked to read the statement set forth at the foot of the waiver form that

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more completely describes the duties of the parties with regard to waiver of service of the summons.

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If service is waived after the date provided in the Notice but before Defendant has been personally

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served, the Answer shall be due sixty (60) days from the date on which the request for waiver was

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sent or twenty (20) days from the date the waiver form is filed, whichever is later. Defendant shall

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also respond to the Notice of Assignment of Prisoner Case to a United States Magistrate Judge

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for Trial by filing a consent/declination form on the date the Answer is due.

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9.

Defendant shall answer the complaint in accordance with the Federal Rules of Civil

Procedure. The following briefing schedule shall govern dispositive motions in this action:
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No later than sixty (60) days from the date the answer is due, Defendant shall

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file a motion for summary judgment or other dispositive motion. The motion must be supported by

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adequate factual documentation, must conform in all respects to Federal Rule of Civil Procedure 56,

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and must include as exhibits all records and incident reports stemming from the events at issue. A

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motion for summary judgment also must be accompanied by a Rand2 notice so that Plaintiff will

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have fair, timely and adequate notice of what is required of him in order to oppose the motion.

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

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served concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust

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available administrative remedies must be accompanied by a similar notice. However, the Court

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notes that under the new law of the circuit, in the rare event that a failure to exhaust is clear on the

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face of the complaint, Defendant may move for dismissal under Rule 12(b)(6) as opposed to the

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previous practice of moving under an unenumerated Rule 12(b) motion. Albino, 747 F.3d at 1166

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(overruling Wyatt, 315 F.3d at 1119, which held that failure to exhaust available administrative

United States District Court
For the Northern District of California

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remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"), should be raised

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by a defendant as an unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear

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on the face of the complaint, Defendant must produce evidence proving failure to exhaust in a

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motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most

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favorable to Plaintiff shows a failure to exhaust, Defendant is entitled to summary judgment under

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Rule 56. Id. But if material facts are disputed, summary judgment should be denied and the district

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judge rather than a jury should determine the facts in a preliminary proceeding. Id. at 1168.

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If Defendant is of the opinion that this case cannot be resolved by summary judgment,

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Defendant shall so inform the Court prior to the date the summary judgment motion is due. All

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papers filed with the Court shall be promptly served on Plaintiff.

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b.

Plaintiff's opposition to the dispositive motion shall be filed with the Court

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and served on Defendant no later than twenty-eight (28) days after the date on which Defendant's

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motion is filed.

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c.

Plaintiff is advised that a motion for summary judgment under Rule 56 of the

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Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do

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in order to oppose a motion for summary judgment. Generally, summary judgment must be granted

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

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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
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would affect the result of your case, the party who asked for summary judgment is entitled to

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judgment as a matter of law, which will end your case. When a party you are suing makes a motion

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for summary judgment that is properly supported by declarations (or other sworn testimony), you

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cannot simply 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, as provided in

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Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show

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that there is a genuine issue of material fact for trial. If you do not submit your own evidence in

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

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granted, your case will be dismissed and there will be no trial. Rand, 154 F.3d at 962-63.

United States District Court
For the Northern District of California

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Plaintiff also is advised that -- in the rare event that Defendant argues that the failure to

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exhaust is clear on the face of the complaint -- a motion to dismiss for failure to exhaust available

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administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without

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prejudice. To avoid dismissal, you have the right to present any evidence to show that you did

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exhaust your available administrative remedies before coming to federal court. Such evidence may

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include: (1) declarations, which are statements signed under penalty of perjury by you or others who

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have personal knowledge of relevant matters; (2) authenticated documents -- documents

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accompanied by a 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 your complaint

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insofar as they were made under penalty of perjury and they show that you have personal knowledge

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of the matters state therein. As mentioned above, in considering a motion to dismiss for failure to

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exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment motion under Rule 56, the

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district judge may hold a preliminary proceeding and decide disputed issues of fact with regard to

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this portion of the case. Albino, 747 F.3d at 1168.

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(The notices above do not excuse Defendant's obligation to serve similar notices again

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concurrently with motions to dismiss for failure to exhaust available administrative remedies and

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motions for summary judgment. Woods, 684 F.3d at 935.)

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d.

Defendant shall file a reply brief no later than fourteen (14) days after the

date Plaintiff's opposition is filed.
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e.

The motion shall be deemed submitted as of the date the reply brief is due.

No hearing will be held on the motion unless the Court so orders at a later date.

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10.

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

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Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendant to depose

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Plaintiff and any other necessary witnesses confined in prison.

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All communications by Plaintiff with the Court must be served on Defendant or

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Defendant's counsel, once counsel has been designated, by mailing a true copy of the document to

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them.

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12.

It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

United States District Court
For the Northern District of California

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informed of any change of address and must comply with the Court's orders in a timely fashion.

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Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes

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while an action is pending must promptly file a notice of change of address specifying the new

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address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail

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directed to the pro se party by the Court has been returned to the Court as not deliverable, and

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(2) the Court fails to receive within sixty days of this return a written communication from the pro

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se party indicating a current address. See L.R. 3-11(b).

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13.

Extensions of time are not favored, though reasonable extensions will be granted.

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Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

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deadline sought to be extended.

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14.

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IT IS SO ORDERED.

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This Order terminates Docket Nos. 6 and 8.

Dated: September 15, 2014

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DONNA M. RYU
United States Magistrate Judge

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P:\PRO-SE\DMR\CR.14\Mathis1966.service.wpd

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