United States District Court, N.D. California, San Francisco Division
ORDER OF SERVICE; ORDER DIRECTING DEFENDANT TO FILE A DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK
RICHARD SEEBORG, District Judge.
In this federal civil rights action filed under 42 U.S.C. § 1983, plaintiff, a state prisoner proceeding pro se, claims that San Quentin Correctional K.A. Thompson violated his Eighth Amendment rights by failing to protect him from being attacked by another inmate. The Court has reviewed the operative (and second amended) complaint under 28 U.S.C. § 1915A(a). Having concluded that the second amended complaint (Docket No. 22) states a cognizable claim, defendant K.A. Thompson is directed to file a dispositive motion or notice regarding such motion on or before October 15, 2015, unless an extension is granted. The Court further directs that defendant is to adhere to the notice provisions detailed in Sections 2.a and 10 of the conclusion of this order.
It appears that plaintiff did not exhaust his administrative remedies prior to filing suit. Defendant is directed to consider first whether plaintiff's claims were exhausted. If he concludes that the claims are unexhausted, he may file a motion for summary judgment on such grounds, though he is not required to do so.
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 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 be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
A "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). Furthermore, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). 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. See West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff alleges that San Quentin Correctional Officer K.A. Thompson knowingly housed him with violent inmates. While so housed, plaintiff was attacked by another prisoner. When liberally construed, this Eighth Amendment failure-to-protect claim is cognizable under section 1983.
For the foregoing reasons, the Court orders as follows:
1. The Clerk of the Court shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the complaint in this matter (Docket No. 22), all attachments thereto, and a copy of this order upon K.A. Thompson at San Quentin State Prison. The Clerk shall also mail courtesy copies of the complaint and this order to the California Attorney General's Office.
2. No later than ninety (90) days from the date of this order, defendant shall file a motion for summary judgment or other dispositive motion with respect to the claims ...