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Gilmore v. Lopez

United States District Court, N.D. California

July 27, 2017

JOHN GILMORE, Plaintiff,
v.
LOPEZ, et al., Defendants.

          ORDER OF SERVICE; ORDER DIRECTING DEFENDANTS TO FILE A DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK

          JOSEPH C. SPERO Chief Magistrate Judge

         INTRODUCTION

         Plaintiff alleges in this 42 U.S.C. § 1983 action that his jailors at CTF Soledad failed to protect him from a violent inmate and denied him access to the courts.[1]

         The operative complaint (Dkt. No. 1) states cognizable claims. Therefore, in response to the operative complaint, defendants are directed to file a dispositive motion or notice regarding such motion on or before November 6, 2017. The Court further directs that defendants adhere to the notice provisions detailed in Sections 2.a and 10 of the conclusion of this order.

         DISCUSSION A.Standard of Review

         In its initial review of this pro se complaint, this Court must dismiss any claim that is frivolous or malicious, or fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e). 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, 556 U.S. 662, 678 (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).

         B. Legal Claims

         Plaintiff alleges that (1) CTF Soledad prison guards Lopez, Hidalgo, and C. Liberatore, all working at Lassen Hall at the time of events, failed to protect him from an inmate who stabbed plaintiff seven times in the face; and (2) Enrique Galvan, a prison litigation coordinator at Soledad, and Williams, a sergeant in the investigative services unit of Soledad, prevented plaintiff from accessing the courts when he tried to file the present suit. When liberally construed, these allegations state cognizable claims for relief.

         CONCLUSION

         For the foregoing reasons, the Court orders as follows:

         1. The Clerk of the Court shall issue summons and a Magistrate Judge jurisdiction consent form and the United States Marshal shall serve these forms, without prepayment of fees, along with a copy of the operative complaint in this matter (Dkt. No. 1), all attachments thereto, and a copy of this order upon Lopez, Hidalgo, C. Liberatore, Enrique Galvan, and Williams at CTF Soledad. The Clerk shall also mail courtesy copies of the operative complaint and this order to the California Attorney General‘s Office.

         2. On or before November 6, 2017, defendants shall file a motion for summary judgment or other dispositive motion with respect to the claims in the complaint found to be cognizable above.

a. If defendants elect to file a motion to dismiss on the grounds plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. ยง 1997e(a), defendants shall do so in a motion for summary judgment, as ...

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