United States District Court, N.D. California
CHARLIE D. JACKSON, #1127769, Plaintiff(s),
SZMACIARZ, Correctional Officer, Defendant(s)
ORDER OF SERVICE
CHARLES R. BREYER, District Judge.
Plaintiff, a prisoner at the Northern Nevada Correctional Center in Carson City, Nevada, has filed a pro se complaint for damages under 42 U.S.C. § 1983 alleging that on October 8, 2012, while he was incarcerated at San Quentin State Prison (SQSP) in San Quentin, California, Correctional Officer Szmaciarz used excessive force against him and retaliated against him.
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief." Id . § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff alleges that on October 8, 2012, Correctional Officer Szmarciarz ran up to him screaming "snitch" and "rat, " and then "slammed plaintiff's face against the bars of [his] cell thus causing the plaintiff to split his lip open." Dkt. #1 (Compl.) at 4. Liberally construed, plaintiff's allegations appear to state a cognizable § 1983 claim for use of excessive force, see Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (prison officials violate 8th Amendment if they apply force maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or restore discipline), and at least an arguably cognizable § 1983 claim for retaliation, see Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (prisoner may not be retaliated against for accessing courts or using prison grievance procedures), against defendant and will be served.
For the foregoing reasons and for good cause shown,
1. The clerk shall issue summons and the United States Marshal shall serve, without prepayment of fees, copies of the complaint in this matter, all attachments thereto, and copies of this order on Correctional Officer Szmaciarz at SQSP. The clerk also shall serve a copy of this order on plaintiff.
2. In order to expedite the resolution of this case, the court orders as follows:
a. No later than 90 days from the date of this order, defendants shall serve and file a motion for summary judgment or other dispositive motion. A motion for summary judgment must be supported by adequate factual documentation and must conform in all respects to Federal Rule of Civil Procedure 56, and must include as exhibits all records and incident reports stemming from the events at issue. A motion for summary judgment also must be accompanied by a Rand notice so that plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust available administrative remedies (where such a motion, rather than a motion for summary judgment for failure to exhaust, is appropriate) must be accompanied by a similar notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with motion to dismiss for failure to exhaust available administrative remedies).
If defendants are of the opinion that this case cannot be resolved by summary judgment or other dispositive motion, they shall so inform the court prior to the date their motion is due. All papers filed ...