Crumb v. Hasselblad et al

Filing 32

ORDER Directing Defendants Hasselblad and Strayhorn to File a Response as to Plaintiff's 31 Second Amended Complaint, and to serve that response upon Plaintiff no later than Friday, 7/28/2017. Signed by Judge Barry Ted Moskowitz on 7/3/2017.(All non-registered users served via U.S. Mail Service)(rlu)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 FRAYNO CRUMB, CDCR #H-20376, vs. 12 14 ORDER DIRECTING DEFENDANTS HASSELBLAD AND STRAYHORN TO FILE A RESPONSE AS TO PLAINTIFF'S SECOND AMENDED COMPLAINT Plaintiff, 11 13 Case No.: 3:16-cv-00581-BTM-NLS MARK HASSELBLAD, Correctional Officer; DAVID STRAYHORN, Correctional Officer, [ECF No. 31] Defendants. 15 16 17 18 Frayno Crumb (“Plaintiff”) is currently incarcerated at Richard J. Donovan 19 Correctional Facility (“RJDCF”), and is proceeding pro se and in forma pauperis in this 20 case filed pursuant to 42 U.S.C. § 1983. 21 On May 22, 2017, the Court granted Plaintiff leave to file a Second Amended 22 Complaint (“SAC”) “alleging Eighth Amendment excessive force claims arising on 23 January 27, 2015, at RJDCF against Defendants D. Strayhorn and M. Hasselblad only, 24 and to serve it upon their counsel of record, no later than Monday, July 10, 2017.” (ECF 25 No. 27 at 6.)1 26 27 1 28 At the same time and in the same Order, the Court dismissed Defendants R. Olson and J. Ramero as parties to this case. (ECF No. 27 at 5.) 1 3:16-cv-00581-BTM-NLS 1 On June 23, 2017, Plaintiff filed his SAC by mailing it to the Clerk of the Court 2 (ECF No. 31); but he did not attach a proof of service by mail upon Defendants’ counsel 3 of record. See FED. R. CIV. P. 5(a)(1), (d). The Clerk of Court nevertheless issued 4 Defendant Strayhorn and Hasselblad’s counsel a Notice of Electronic Filing (“NEF”) as 5 to Plaintiff’s SAC, on the same day—June 23, 2017. See S.D. CAL. CIVLR 5.4.c, d; ECF 6 No. 31 (https://ecf.casd.circ9.dcn/cgi-bin/DisplayReceipt.pl?114159199404839-L_1_0- 7 1). Plaintiff’s SAC contains the same excessive force allegations against Defendants 8 9 Strayhorn and Hasselblad as his original Complaint, and the Court has already found 10 them sufficient to state a plausible claim for relief under the Eighth Amendment. See 11 ECF No. 8 at 5 (citing 28 U.S.C. § 1915(e)(2), § 1915A(b)(1); Wilhelm v. Rotman, 680 12 F.3d 1113, 1123 (9th Cir. 2012); Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (noting 13 that when prison officials stand accused of using excessive force, the core judicial inquiry 14 is “whether force was applied in a good-faith effort to maintain or restore discipline, or 15 maliciously and sadistically to cause harm.”)). While Defendants may occasionally be permitted to “waive the right to reply to 16 17 any action brought by a prisoner confined in any jail, prison, or other correctional facility 18 under section 1983,” 42 U.S.C. § 1997e(g)(2), once the Court has conducted its sua 19 sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made 20 a preliminary determination based on the face on the pleading alone that Plaintiff has a 21 “reasonable opportunity to prevail on the merits,” Defendants properly served with 22 summons and the original complaint pursuant to FED. R. CIV. P. 4 are required to respond. 23 See ECF Nos. 11, 12 (waivers of service returned executed on behalf of Defendants 24 Hasselblad and Strayhorn by U.S. Marshal on January 31, 2017). 25 /// 26 /// 27 /// 28 /// 2 3:16-cv-00581-BTM-NLS 1 Conclusion and Order 2 Accordingly, Defendants Hasselblad and Strayhorn are hereby Ordered to file a 3 response to Plaintiff’s SAC (ECF No. 31), and to serve that response upon Plaintiff no 4 later than Friday, July 28, 2017.2 5 IT IS SO ORDERED. 6 7 Dated: July 3, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court notes, as it has previously, that it is still not “clear from the face” of Plaintiff’s SAC whether he exhausted all available administrative remedies as to his excessive force claims pursuant to 42 U.S.C. § 1997e(a) before filing it. See Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc); Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). In his SAC, which is verified under penalty of perjury, see ECF No. 31 at 20, Plaintiff states he has “previously sought and exhausted all forms of available relief from the proper administrative officials regarding the acts alleged” in his SAC. (Id. at 6). But he also claims his attempts to file a CDC 602 staff complaint were “thwarted by I/M Appeals Coordinator R. Olson.” Id., Ex. D-E at 49-64; Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (“[A]n inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’”) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)); id. at 1859-60 (noting unavailability where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.”). Therefore, because exhaustion is an affirmative defense, Defendants Strayhorn and Hasselblad “will have to present probative evidence ... ‘to plead and prove’ ... that [Plaintiff] has failed to exhaust” all availalable administrative remedies pursuant to FED. R. CIV. P. 56, should they elect to defend on this basis. Albino, 747 F.3d at 1169 (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). 2 3 3:16-cv-00581-BTM-NLS

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