Buckelew v. Gore et al

Filing 35

REPORT AND RECOMMENDATION For Order: (1) Granting In Part And Denying In Part Defendant's Motion To Dismiss; [ECF No. 7 ] (2) Granting Specially Appearing Defendant's Erroneously Listed As Captain Buchanan And Captain Haye's Motion To Quash; [ECF No. 9 ] (3) Denying Without Prejudice Plaintiff's Motion For Summary Judgement; [ECF No. 11 ]. Signed by Magistrate Judge Nita L. Stormes on 8/1/2022.(All non-registered users served via U.S. Mail Service)(ddf) .

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DION SCOTT BUCKELEW, Case No.: 21cv810-LL (NLS) Plaintiff, 12 13 v. 14 WILLIAM D. GORE; CAPTAIN BUCHANAN; CAPTAIN HAYES, 15 16 REPORT AND RECOMMENDATION FOR ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; [ECF NO. 7] Defendants. 17 (2) GRANTING SPECIALLY APPEARING DEFENDANTS ERRONEOUSLY LISTED AS CAPTAIN BUCHANAN AND CAPTAIN HAYES’S MOTION TO QUASH; [ECF NO. 9] 18 19 20 21 (3) DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; [ECF NO. 11] 22 23 24 25 26 Dion Scott Buckelew (“Plaintiff”), a California prisoner proceeding pro se, filed 27 this action under 42 U.S.C. § 1983 against Sheriff William D. Gore, Captain Buchanan, 28 and Captain Hayes (collectively, “Defendants”). ECF No. 4. Plaintiff alleges that 1 21cv810-LL (NLS) 1 Defendants violated his constitutional rights while he was at San Diego Central Jail on 2 several occasions. Before the Court are several motions, which will be addressed in turn 3 below. 4 I. 5 6 BACKGROUND Plaintiff’s allegations in his amended complaint center around two separate Counts.1 ECF No. 4. 7 First, Plaintiff argues that Defendants violated his rights to freedom of religion, 8 freedom of association, and under the Religious Land Use and Institutionalized Persons 9 Act (“RLUIPA”). ECF No. 4 at 3. Specifically, Plaintiff alleges that starting from 10 March 15, 2020, Defendants have denied him access to church services, denied 11 communion, and denied pastor/chaplain services. Id. Plaintiff alleges that such denials 12 during the Covid-19 pandemic have severely burdened his religious beliefs, and caused 13 him to suffer mental and physical damage. Id. Plaintiff alleges that these denials were all 14 due to policies and procedures implemented and carried out by Defendants. Id. 15 Second, Plaintiff alleges that Defendants violated his rights to be “free from 16 infectious diseases,” from cruel and unusual punishment, and to medical care by 17 implementing and carrying out Covid-19 protocols that resulted in Plaintiff contracting 18 the virus around December 16, 2020. Id. at 4. Plaintiff further alleges that after 19 contracting the virus, he was not given proper and adequate medical and mental health 20 21 22 23 24 25 26 27 28 1 Plaintiff’s amended complaint includes a third count, where he alleges that Defendants violated his rights to medical care, from cruel and unusual punishment, and from a “clean and safe environment” by specifically implementing and carrying out procedures that allowed an inmate to be transferred out of Plaintiff’s housing module (8-C) on August 22, 2020 for inciting racial tensions and permitting the same inmate to be transferred back on February 7, 2021. Id. at 5. Upon return, Plaintiff alleges that this inmate, along with 2-3 others, attacked Plaintiff, causing his physical injury including abrasions, a bloody nose, black eye, fat lip, possibly a broken nose and broken jaw, and various mental injuries. Id. However, on screening, the Court discussed his claim against Defendants Gore, Buchanan, and Hayes as insufficient to state a claim for relief that was plausible on its face. ECF No. 5 at 8-9. Thus, this claim has already been dismissed from this case. 2 21cv810-LL (NLS) 1 treatment, and was only given an inhaler and told to “drink water.” Id. Plaintiff alleges 2 that he suffered from various physical ailments as a result of contracting the virus. Id. 3 4 II. MOTION TO DISMISS [ECF No. 7] The first motion before the Court is Defendants’ motion to dismiss filed by 5 Defendant William D. Gore and joined by specially appearing Defendants Captain 6 Buchanan and Captain Hayes. ECF Nos. 7, 9. 7 A. 8 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to Legal Standards 9 state a claim tests the legal sufficiency of a plaintiff’s claim. Navarro v. Block, 250 F.3d 10 729, 732 (9th Cir. 2001). When considering the motion, the court must accept as true all 11 well-pleaded factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 556 12 U.S. 544, 555 (2007). The court need not accept as true legal conclusions cast as factual 13 allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the 14 elements of a cause of action, supported by mere conclusory statements” are insufficient). 15 A complaint must “state a claim for relief that is plausible on its face.” Twombly, 16 550 U.S. at 570. To survive a motion to dismiss, a complaint must include non- 17 conclusory factual content. Id. at 555; Iqbal, 556 U.S. at 679. The facts and the 18 reasonable inferences drawn from those facts must show a plausible—not just a 19 possible—claim for relief. Twombly, 550 U.S. at 556; Iqbal, 557 U.S. at 679; Moss v. 20 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The focus is on the complaint, as 21 opposed to any new facts alleged in, for example, the opposition to a defendant’s motion 22 to dismiss. See Schneider v. California Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 23 (9th Cir. 1998), reversed and remanded on other grounds as stated in 345 F.3d 716 (9th 24 Cir. 2003). “Determining whether a complaint states a plausible claim for relief [is] . . . a 25 context-specific task that requires the reviewing court to draw on its judicial experience 26 and common sense.” Iqbal, 557 U.S. at 679. The “mere possibility of misconduct” or 27 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 28 this plausibility standard. Id.; see also Moss, 572 F.3d at 969. 3 21cv810-LL (NLS) 1 In addition, factual allegations asserted by pro se petitioners, “however inartfully 2 pleaded,” are held “to less stringent standards than formal pleadings drafted by lawyers.” 3 Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, where a plaintiff appears pro se in a 4 civil rights case, the court “must construe the pleadings liberally and must afford plaintiff 5 the benefit of any doubt.” See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 6 623 (9th Cir. 1988). 7 B. 8 Plaintiff’s first claim alleges that he has been denied access to various religious Claim 1: Access to Religious Services 9 services since March 15, 2020. ECF No. 4 at 3. He alleges that Sheriff Gore and 10 Captains Buchanan and Hayes denied him such services, and that they have also 11 implemented and carried out procedures and policies that caused these alleged violations. 12 Id. 13 Plaintiff alleges violation of both his First Amendment right to freedom of religion 14 and also under RLUIPA. In order to state a First Amendment free exercise claim, 15 Plaintiff must “show that the government action in question substantially burdens the 16 person’s practice of [their] religion.” Jones v. Williams, 791 F.3d 1023, 1031-32 (9th Cir. 17 2015) (internal citations, quotation marks, and alterations omitted). Jones defines 18 “substantial burden” as one which “places more than an inconvenience on religious 19 exercise; it must have a tendency to coerce individuals into acting contrary to their 20 religious beliefs or exert substantial pressures on an adherent to modify his behavior and 21 to violate his beliefs.” Id. 22 Section 3 of RLUIPA provides that “[n]o government shall impose a substantial 23 burden on the religious exercise of a person residing in or confined to an institution . . . 24 even if the burden results from a rule of general applicability” absent a showing that the 25 burden imposed is “in furtherance of a compelling government interest” and “is the least 26 restrictive means of furthering . . . that interest.” 42 U.S.C. § 2000cc-1(a); see also 27 Khatib v. County of Orange, 639 F.3d 898, 904-05 (9th Cir. 2011) (concluding that 28 RLUIPA applies to county jail facilities). “RLUIPA provides more ‘expansive 4 21cv810-LL (NLS) 1 protection’ for inmates’ ‘religious liberty’ than the First Amendment.” Phillips v. County 2 of Riverside, 2020 WL 6203574 (C.D. Cal. Oct. 22, 2020) (citing Holt v. Hobbs, 574 U.S. 3 352, 358 (2015) and Shakur v. Shiriro, 514 F.3d 878, 888 (9th Cir. 2008).) A 4 “‘substantial burden’” sufficient to state a RLUIPA claim is a “‘significantly great 5 restriction or onus upon [religious] exercise.’” Hartmann, 707 F.3d at 1124-25 (quoting 6 San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1039 (9th Cir. 2004)). 7 Here, Plaintiff has alleged that since March 15, 2020 through the time he filed his 8 complaint, he has essentially been deprived of all access to “church services for 9 congregation, seeking counsel, encouragement, direction, worship, prayer and ministry.” 10 ECF No. 4 at 3. Additionally, he has been denied communion and “pastor or chaplain for 11 prayer, ministry, counseling, awareness, bible study, direction, hope and love of god . . . 12 .” Id. These allegations, if taken as true as required on a motion to dismiss, sufficiently 13 state a deprivation of access to religious services that constitutes a significant burden 14 under the First Amendment and RLUIPA. 15 Defendant Sheriff Gore argues in the motion to dismiss that his individual capacity 16 claim should be dismissed because Plaintiff has not alleged any personal participation by 17 him. ECF No. 7 at 3. Gore argues that he is a supervisor and there needs to be 18 allegations that he directed the defendant deputies or that he had actual contact with 19 Plaintiff. Id. However, Plaintiff states in his complaint that “Sheriff William D. Gore, 20 Captain Buchanan and Captain Hayes violated my 1st amendment right to religion and 21 [RLUIPA]” by depriving him of various religious services. ECF No. 4 at 3. Construing 22 this allegation liberally and affording Plaintiff benefit of the doubt as a pro se litigant, 23 this alleges personal involvement by Sheriff Gore in actual deprivation of his rights. In 24 addition, Plaintiff alleges that the violations were “due to policies and procedures 25 implemented and carried out by Sheriff Gore, Captain Hayes and Captain Buchanan.” Id. 26 Thus, the Court concludes that these arguments are insufficient to show failure to state on 27 claim for these reasons. 28 5 21cv810-LL (NLS) 1 2 Accordingly, the Court RECOMMENDS that Defendants’ motion to dismiss this claim be DENIED as to Sheriff Gore, Captain Buchanan, and Captain Hayes. 3 C. 4 Plaintiff’s second claim centers around his allegations that he contracted Covid-19 Claim 2: Covid-19 Policies and Procedures 5 due to the policies and procedures that Sheriff Gore and Captains Buchanan and Hayes 6 implemented. ECF No. 4 at 4. 7 Because Plaintiff was a pretrial detainee, this claim must be analyzed under the 8 Fourteenth Amendment. Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 9 2018); Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). During the 10 period of detention prior to trial, a pretrial detainee may be properly subject to the 11 conditions of the jail so long as they do not amount to punishment. Bell v. Wolfish, 441 12 U.S. 520, 545 (1979). Such detainees have a “right to adequate food, shelter, clothing, 13 and medical care.” Youngberg v. Romeo, 457 U.S. 307, 315 (1982). 14 To state a claim of unconstitutional conditions of confinement against an 15 individual defendant, a pretrial detainee must allege facts that show: (i) the defendant 16 made an intentional decision with respect to the conditions under which the plaintiff was 17 confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious 18 harm; (iii) the defendant did not take reasonable available measures to abate that risk, 19 even though a reasonable official in the circumstances would have appreciated the high 20 degree of risk involved—making the consequences of the defendant’s conduct obvious; 21 and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 22 Gordon, 888 F.3d at 1125. Courts borrow from Eighth Amendment principles in 23 determining the care to be afforded pretrial detainees. Pobursky v. Madera Cnty., No. 24 107-CV-0611 AWI DLB, 2007 WL 4557090, at *8 (E.D. Cal. Dec. 21, 2007). 25 Since the Covid-19 pandemic, many district courts within the Ninth Circuit have 26 addressed similar claims related to the virus. See, e.g., Cedillos v. Youngblood, No. 27 121CV00138DADBAMPC, 2021 WL 2534534, at *4 (E.D. Cal. June 21, 2021), report 28 and recommendation adopted, No. 121CV00138DADBAMPC, 2021 WL 3032688 (E.D. 6 21cv810-LL (NLS) 1 Cal. July 19, 2021). Many courts have found that Covid-19 does pose a substantial risk 2 of serious harm. Id. (citing Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. Apr. 3 17, 2020)). However, Plaintiff must state more than “generalized allegations that 4 [Defendants] have not done enough to control the spread.” Id. Rather, Plaintiff must 5 “specifically identify a defendant’s challenged conduct, explain how such conduct is 6 unreasonable under the circumstances, and describe how such conduct harmed Plaintiff.” 7 Id. 8 For example, “generalized allegations that Defendants have not done enough to 9 enforce six-feet social and living distancing, or provided sufficient cleaning supplies, in 10 order to control the spread of COVID-19” is not sufficient to state a claim. McKissick v. 11 Gastelo, No. 221CV01945VAPMAA, 2021 WL 2895679, at *5 (C.D. Cal. July 9, 2021); 12 see also Cedillos, 2021 WL 2534534, at *2, *4 (no cognizable claim based on allegations 13 that inmates were not being quarantined, cells and showers were not disinfected after 14 contamination, inmates who tested positive were rotated, living quarters were dirty, and 15 showers have discarded and soiled personal products). In contrast, in Jones v. Sherman, 16 the Court found sufficient details to state a claim where plaintiff alleged that he was 17 housed in a facility that turned into a quarantine, causing him to be infected, and he was 18 housed with seven other inmates without any social distancing procedures. No. 19 121CV01093DADEPGPC, 2022 WL 783452, at *2, 8 (E.D. Cal. Mar. 11, 2022). 20 Here, while Plaintiff does list his complaints—including policies that alleged 21 allowed inmate to inmate transfers, insufficient quarantine time, insufficient soap and 22 other hygiene items, insufficient cleaning supplies, insufficient social distancing, 23 insufficient coping mechanisms, and not releasing low level offenders—these do not 24 amount to more than generalized allegations that inadequate Covid-19 procedures were 25 followed. Listing more of such generalized allegations, without more specific allegations 26 that explain how Defendants subjected Plaintiff to a substantial risk of serious harm, does 27 not sufficiently state a claim. See McKissick, 2021 WL 2895679, at *5; Cedillos, 2021 28 WL 2534534, at *2, *4. 7 21cv810-LL (NLS) 1 Moreover, Plaintiff does not explain how each Defendant was specifically 2 responsible for any of the alleged failures, which fails to specify the required causal link 3 between each Defendant’s actions and the claimed constitutional violation. McKissick, 4 2021 WL 2895679, at *5. Rather, just like in McKissick, Plaintiff clumps the three 5 named defendants together, only generically stating that they implemented and carried 6 out the policies and procedures he complains about. Id. 7 8 Accordingly, the Court RECOMMENDS that Defendants’ motion to dismiss this claim be GRANTED and this claim be DISMISSED WITH LEAVE TO AMEND.2 9 III. 10 MOTION TO QUASH SERVICE The second motion before the Court is a motion to quash service under Federal 11 Rules of Civil Procedure 12(b)(2), 12(b)(4), and 12(b)(5) by specially appearing 12 Defendants Captain Buchanan and Captain Hayes. ECF No. 9. 13 Defendants argue that the U.S. Marshals served a copy of the summons, listing 14 Sheriff Gore only, on a paralegal, Christine Lawyer, at the Sheriff’s department at the 15 Ridgehaven Court location of the Sheriff’s office. ECF No. 9-1 at 2. U.S. Marshals did 16 not serve a summons listing the other defendants. Id. Ms. Lawyer states that the 17 Marshals did not mention attempting service on anyone else, and that she was only able 18 to accept service on behalf of Sheriff Gore. ECF No. 9-2 at ¶¶ 2, 3. 19 Under Federal Rule of Civil Procedure 12(b)(4), Defendants may challenge the 20 sufficiency of process, and under Rule 12(b)(5), Defendants may challenge sufficiency of 21 service of process. If service is insufficient, as defined by Federal Rule of Civil 22 Procedure 4, “the district court has discretion to dismiss an action or to quash service.” 23 S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006). “Once service 24 is challenged, plaintiffs bear the burden of establishing that service was valid under Rule 25 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “Rule 4 is a flexible rule that 26 27 28 2 This claim also references actions by Dr. Jon Montgomery. ECF No. 4 at 4. However, he was dismissed on screening of the First Amended Complaint already. ECF No. 5. 8 21cv810-LL (NLS) 1 should be liberally construed to uphold service so long as a party receives sufficient 2 notice of the complaint.” Chanv. Society Expeditions, 39 F.3d 1398, 1404 (9th Cir. 3 1994). However, “[n]either actual notice, nor simply naming the person in the caption of 4 the complaint, will subject defendants to personal jurisdiction if service was not made in 5 substantial compliance with Rule 4.” Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th 6 Cir. 1982) (internal citations omitted). 7 In a prisoner § 1983 action where the Plaintiff has been granted IFP status, as 8 Plaintiff has here, Federal Rule of Civil Procedure 4(c)(2)(B)(i) entitles plaintiff to 9 service by the U.S. Marshal and 28 U.S.C. § 1915(c) states that “officers of the court 10 shall issue and serve all process.” “An incarcerated pro se plaintiff proceeding in forma 11 pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, 12 and, having provided the necessary information to help effectuate service, plaintiff should 13 not be penalized by having his or her action dismissed for failure to effect service where 14 the U.S. Marshal or the court clerk has failed to perform the duties required of each of 15 them under 28 U.S.C. § 1915(c) and Rule 4 of the Federal Rules of Civil Procedure.” 16 Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). 17 When Plaintiff was granted IFP status, the Clerk of the Court issued an amended 18 summons, listing all the Defendants, and provided Plaintiff with an IFP packet, which 19 included 4 copies of the summons, 5 copies of the amended complaint, 4 copies, of the 20 IFP order, and 3 U.S. Marshal Service (USM-285) forms. ECF Nos. 6, 6-1. The 21 instructions alerted Plaintiff that he must fill out and return the USM-285 forms, and 22 must fill out one for each Defendant listed on the summons. ECF No. 6-1. 23 The Proof of Service from the U.S. Marshals shows only one USM-285 form. 24 ECF No. 8. It appears that Plaintiff filled out one form, but included all defendants on 25 that form. Plaintiff did fill out that the “Number of parties to be served in this case” is 26 “3” and in the “Defendant” field, he listed “William D. Gore (Sheriff), Capt. Buchanan, 27 Capt. Hayes.” Id. In the “Name of Individual . . . to serve,” Plaintiff again listed “S.D. 28 Sheriff William D. Gore, Capt. Buchanan, Capt. Hayes” and listed the address as the 9 21cv810-LL (NLS) 1 Ridgehaven Court location. Id. This form was signed by the U.S. Marshal who effected 2 service. 3 According to Ms. Lawyer from the Sheriff’s Office, the U.S. Marshal came to her 4 office and only served one copy of the summons and amended complaint. ECF No. 9-1 5 at ¶ 2. The summons was directed to Sheriff Gore. Id. at 4. Ms. Lawyer also declares 6 that she is not authorized to accept service on behalf of the captains and that Captain 7 Hayes does not work at the Sheriff’s department. Id. at ¶ 3. 8 9 Under Federal Rule of Civil Procedure 4, a summons must name the court and the parties and be directed to the defendant. Fed. R. Civ. P. 4(a). If there are multiple 10 defendants, a summons or copy of a summons that is addressed to multiple defendants 11 must be issued for each defendant to be served. Fed. R. Civ. P. 4(b). An individual may 12 be served by “delivering a copy of the summons and of the complaint to the individual 13 personally,” “leaving a copy of each at the individual's dwelling or usual place of abode 14 with someone of suitable age and discretion who resides there,” or “delivering a copy of 15 each to an agent authorized by appointment or by law to receive service of process.” Fed. 16 R. Civ. P. 4(e). 17 Here, it appears that Rule 4 was not strictly followed. No individual summons was 18 presented for Captains Buchanan and Hayes, and it appears only one copy of the 19 complaint was presented. However, it also appears that Plaintiff was not notified of this 20 issue by the U.S. Marshals, who were charged with effecting service due to his IFP 21 status. It is true that Plaintiff did not separately fill out a USM-285 form for each 22 Defendant. However, the proof of service form lists all three defendants in several 23 places, states that 3 defendants were requested to be served, and was signed by a U.S. 24 Marshal as completed. Nothing on the form would have indicated to Plaintiff that there 25 was an issue with service. 26 Here, Plaintiff did make a technical mistake in not filling out the USM-285 for 27 each Defendant and instead filling out one and listing all three defendants on it. 28 However, he was not made aware of the issue and the proof of service form could 10 21cv810-LL (NLS) 1 reasonably be interpreted to state that all three defendants listed were served. In such 2 situations, where an IFP plaintiff relies on the U.S. Marshals to affect service, “courts 3 recognize that the Plaintiff's claims should not be subject to dismissal, but instead that 4 measures be taken to either re-issue summons and re-authorize service by the officers of 5 the Court, or ask the defendant to waive the insufficient service issues and agree to 6 waiver of service of summons under Federal Rule of Civil Procedure 4(d).” Cordova v. 7 Cuendiz, No. 4:20-CV-1198-O, 2021 WL 5323762, at *3 (N.D. Tex. Nov. 16, 2021); see 8 Kaminsky v. Wake Forest Univ. Baptist Med. Center, No. 1:08-cv-882, 2009 WL 9 3208449, at *5 (M.D.N.C. Sept. 30, 2009) (“[T]he court remains under a duty to assist 10 Plaintiff with regard to service of process in view of his pro se status and the granting of 11 leave to proceed in forma pauperis. Therefore, rather than recommending dismissal of 12 the action as to the Defendants on the basis of inadequate service, the Court must take 13 reasonable steps to see that service is effected on all Defendants properly before the 14 Court in accordance with Rule 4(c)(3)”). 15 Thus, the Court RECOMMENDS that the motion to quash service on Captain 16 Buchanan and Captain Hayes be DENIED but that Plaintiff and the Marshals are given 17 an additional 60 days to properly effect service. Plaintiff shall fill out the USM-285 18 separately for each of Captains Buchanan and Hayes, and return them to the U.S. 19 Marshals to complete service. 20 IV. 21 MOTION TO SUMMARY JUDGMENT The final motion before the Court is a combined motion filed by Plaintiff, which 22 appears to be a Motion to Appoint Counsel, Opposition to Defendants’ Motion to 23 Dismiss, and a Motion for Summary Judgement.3 ECF No. 11. 24 25 Defendants filed an Objection to the Motion for Summary Judgment portion of this filing. ECF No. 16. Defendants object because the motion is untimely, and Plaintiff 26 27 28 3 The Court will address the motion to appoint counsel in a separate order. 11 21cv810-LL (NLS) 1 failed to follow rules in filing the motion, including getting a motion date, serving a copy 2 on Defendants, or the required elements of a motion for summary judgment. Id. at 2-3. 3 In addition, Defendants object that the motion does not include the actual evidence that is 4 referenced in the motion for summary judgment. Id. at 3. Moreover, the motion for 5 summary judgment includes arguments regarding incidents that are not in the operative 6 complaint. Id. 7 The Court agrees with Defendants regarding the deficiencies on the motion for 8 summary judgment. Thus, the Court RECOMMENDS that Plaintiff’s motion for 9 summary judgment be DENIED WITHOUT PREJUDICE. Plaintiff may file a 10 renewed motion for summary judgment, following the procedural rules and with actual 11 evidence he relies upon for the motion. 12 V. CONCLUSION 13 As outlined herein, the undersigned recommends as follows: 14 a) Plaintiff’s claim under the 14th Amendment for cruel and unusual 15 punishment be DISMISSED WITH LEAVE TO AMEND. Defendants’ 16 motion to dismiss be DENIED otherwise. 17 b) Defendants’ motion to quash service for Defendants Captain Buchanan and 18 Captain Hayes be DENIED. However, Plaintiff must perfect service on 19 these two Defendants within 60 days. 20 21 22 23 c) Plaintiff’s motion for summary judgment be DENIED WITHOUT PREJUDICE. This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). 24 IT IS ORDERED that no later than August 15, 2021, any party to this action may 25 file written objections and serve a copy on all parties. The document should be captioned 26 “Objections to Report and Recommendation.” 27 28 IT IS FURTHER ORDERED that any reply to the objections must be filed and served on all parties no later than August 22, 2021. 12 21cv810-LL (NLS) 1 The parties are advised that failure to file objections within the specified time may 2 waive the right to raise those objections on appeal of the Court’s order. Martinez v. Ylst, 3 951 F.2d 1153, 1157 (9th Cir. 1991). 4 IT IS SO ORDERED. 5 Dated: August 1, 2022 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 21cv810-LL (NLS)

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