Farias v. Atchley et al

Filing 12

ORDER DISMISSING NON-COGNIZABLE CLAIMS AND OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK Signed by Judge Beth Labson Freeman on 11/17/2021. Dispositive Motion due by 2/16/2022. (tsh, COURT STAFF) (Filed on 11/17/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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JORGE ALBERTO FARIAS,
Plaintiff,

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v.
MATTHEW ATCHLEY, et al.,
Defendants.

Case No. 21-04167 BLF (PR)
ORDER DISMISSING NONCOGNIZABLE CLAIMS AND OF
SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION; INSTRUCTIONS TO
CLERK

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Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42

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U.S.C. § 1983 against prison staff at the Salinas Valley State Prison (“SVSP”). Dkt. No. 1.

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On September 24, 2021, the Court screened the complaint and found it stated cognizable

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claims of excessive force, denial of his right to access to the courts, and an ADA claim.

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Dkt. No. 11 at 10. The Court granted leave to amend with respect to the remaining claims

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or, in the alternative, to file notice that he wishes to proceed on the cognizable claims and

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strike all other claims from the complaint. Id. Plaintiff was advised that if he did not file

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an amended complaint in the time provided, i.e., twenty-eight days from the date the order

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was filed, the action would proceed on the cognizable claims. Id. at 11.

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The deadline has passed, and Plaintiff has filed no response. Accordingly, this

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matter shall proceed solely on the cognizable claims and the deficient claims shall be

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dismissed for failure to state a claim. Id.

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DISCUSSION

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A.

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

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

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upon which relief may be granted or seek monetary relief from a defendant who is immune
from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally

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United States District Court
Northern District of California

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construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Plaintiff’s Claims
In an initial screening order, the Court found the complaint set forth the following

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cognizable claims: (1) excessive force against Defendants Lopez, Gutierrez-Aparicio, and

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Barrera-Negrete; (2) denial of his right of access to the courts against Defendants Cortina

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and Ear; and (3) ADA claims against Defendants Lopez, Gutierrez-Aparicio, Barrera-

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Negrete, Cortina, and Ear. Dkt. No. 11 at 4, 7-8, 9.

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The Court dismissed Plaintiff’s due process claim for failure to state a claim. Id. at

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6-7, 10. Plaintiff was given leave to amend with respect to the deficient claims, but he has

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failed to do so. Id. at 10/ Accordingly, the following claims are DISMISSED with

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prejudice for failure to state a claim: (1) Eighth Amendment claim based on the denial of

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Plaintiff’s asthma inhaler; (2) all claims against Defendant Atchley; and (3) Eighth

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Amendment claims based on what transpired in the yard against Defendants Larraux,

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Cervantes, Clavijo, and Soto. Id. at 4-5, 6, 9.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

This action shall proceed on the cognizable claims described above. See

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supra at 2. All other claims and Defendants are DISMISSED with prejudice from this

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action for failure to state a claim. Accordingly, the Clerk shall terminate the following

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defendants from this action: Matthew Atchley, H. Clavijo, F. Soto, M. Cervantes, and J.

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Larraux.

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2.

The following defendants shall be served at SVSP:

United States District Court
Northern District of California

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a.

Correctional Officer C. Lopez

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b.

Correctional Officer Jose Gutierrez-Aparicio

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c.

Correctional Officer P. Barrera-Negrete

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d.

Correctional Officer A. Cortina

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e.

Correctional Officer D. C. Ear

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Service on the listed defendant(s) shall proceed under the California Department of

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Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from

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prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve

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on CDCR via email the following documents: the operative complaint, and any

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attachments thereto, Dkt. No.1, a copy of the court’s “Order of Dismissal with Leave to

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Amend,” Dkt. No. 11, this order of service, a CDCR Report of E-Service Waiver form and

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a summons. The clerk also shall serve a copy of this order on the plaintiff.

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No later than 40 days after service of this order via email on CDCR, CDCR shall

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provide the court a completed CDCR Report of E-Service Waiver advising the court which

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defendant(s) listed in this order will be waiving service of process without the need for

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service by the United States Marshal Service (USMS) and which defendant(s) decline to

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waive service or could not be reached. CDCR also shall provide a copy of the CDCR

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Report of E-Service Waiver to the California Attorney General’s Office which, within 21

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days, shall file with the court a waiver of service of process for the defendant(s) who are

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waiving service.

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Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for

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each defendant who has not waived service according to the CDCR Report of E-Service

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Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205

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forms and copies of this order, the summons and the operative complaint for service upon

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each defendant who has not waived service. The clerk also shall provide to the USMS a

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copy of the CDCR Report of E-Service Waiver.

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3.

No later than ninety-one (91) days from the date this order is filed,

United States District Court
Northern District of California

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Defendants shall file a motion for summary judgment or other dispositive motion with

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respect to the claims in the complaint found to be cognizable above.
a.

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Any motion for summary judgment shall be supported by adequate

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factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of

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Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If any Defendant is of the

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opinion that this case cannot be resolved by summary judgment, he shall so inform the

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Court prior to the date the summary judgment motion is due.
b.

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In the event Defendants file a motion for summary judgment, the

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Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate

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warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See

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Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012).

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4.

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

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and served on Defendants no later than twenty-eight (28) days from the date Defendants’

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motion is filed.

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Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and

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Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment

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must come forward with evidence showing triable issues of material fact on every essential

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element of his claim). Plaintiff is cautioned that failure to file an opposition to

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Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to

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the granting of the motion, and granting of judgment against Plaintiff without a trial. See

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Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18

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F.3d 651, 653 (9th Cir. 1994).

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United States District Court
Northern District of California

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5.

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

Plaintiff’s opposition is filed.
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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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All communications by the Plaintiff with the Court must be served on

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Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true

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copy of the document to Defendants or Defendants’ counsel.

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8.

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) or Local

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Rule 16-1 is required before the parties may conduct discovery.

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9.

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

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court informed of any change of address and must comply with the court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to

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

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10.

Extensions of time must be filed no later than the deadline sought to be

extended and must be accompanied by a showing of good cause.

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IT IS SO ORDERED.

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Dated: _November 17, 2021______

________________________
BETH LABSON FREEMAN
United States District Judge

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Order Dism. Con-Cog. Claims and of Service
PRO-SE\BLF\CR.21\04167Farias_svc

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