Shelmon v. Carrillo et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MARLON SHELMON,
Plaintiff,
v.
JENEL CARRILLO, et al.,
Defendants.
Case No. 26-cv-04672-SVK
ORDER GRANTING MOTION FOR
PARTIAL DISMISSAL; SCHEDULING
DISPOSITIVE MOTION
Re: Dkt. No. 11
Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C.
§ 1983 against Jenel Carillo and Corina Lopez, two mailroom employees at the California
Training Facility (“CTF”). In its initial review pursuant to 28 U.S.C. § 1915A, the Court found
the complaint, when liberally construed, states cognizable claims for the violation of his rights
under the First and Sixth Amendments, and for negligence under state law. (ECF No. 7 at 2.)
Defendants have filed a motion to dismiss the negligence claim for failure to state a cognizable
claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure because Plaintiff did
not present his claim to the Government Claims Board before filing his complaint, as required by
the California Torts Claims Act (“CTCA”), see Cal. Gov’t Code §§ 905.2, 911.2, 945.4, 950.2.
(ECF No. 11 at 2-3.) In his opposition, Plaintiff concedes he has not complied with the fair-
presentation requirement of the CTCA and agrees that for that reason his negligence claims must
be dismissed under Rule 12(b)(6). (See ECF No. 13 at 2-3.) Defendants’ motion to dismiss
Plaintiff’s negligence claim under Rule 12(b)(6) is therefore GRANTED, and Plaintiff’s
negligence claim is DISMISSED without prejudice to Plaintiff filing it once he has complied with
the CTCA.
In his opposition, Plaintiff requests dismissal of the negligence claim with leave to amend.
This request is denied as premature. Once Plaintiff has complied with the CTCA with respect to
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United States District Court
Northern District of California
his negligence claim, he may file a motion for leave to amend. The motion must include as an
attachment his proposed amended complaint, which, if he wishes to reassert a claim of negligence,
must allege facts demonstrating compliance with (or excusal from) the CTCA fair-presentation
procedures. See Creighton v. City of Livingston, 628 F.Supp.2d 1199, 1224-25 (E.D. Cal. 2009)
(requiring affirmative allegation of compliance with the CTCA for supplemental state tort claim in
federal court). Plaintiff is additionally advised that any amended complaint would completely
replace the original complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), so he
must include in any amended complaint all the claims he wishes to pursue.
In order to expedite the resolution of this case, the Court orders as follows:
1. No later than March 9, 2027, Defendants shall file a motion for summary judgment or
other dispositive motion. The motion shall be supported by adequate factual documentation and
shall conform in all respects to Federal Rule of Civil Procedure 56, and shall include as exhibits
all records and incident reports stemming from the events at issue. If Defendants are of the
opinion that this case cannot be resolved by summary judgment, they shall so inform the Court
prior to the date the summary judgment motion is due. All papers filed with the Court shall be
promptly served on Plaintiff.
At the time the dispositive motion is served, Defendants shall also serve, on a separate
paper, the appropriate notice required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998)
(en banc). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012).
Plaintiff's opposition to the dispositive motion, if any, shall be filed with the Court and
served upon Defendant no later than April 7, 2027. Plaintiff must read the attached page headed
“NOTICE -- WARNING,” which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952,
953-954 (9th Cir. 1998) (en banc).
Defendants shall file a reply brief no later than April 21, 2027.
The motion shall be deemed submitted as of the date the reply brief is due. No hearing
will be held on the motion unless the Court so orders at a later date.
2. All communications by Plaintiff with the Court must be served on Defendants or their
attorney, by mailing a true copy of the document to Defendants or their attorney.
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United States District Court
Northern District of California
3. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court
informed of any change of address by filing a separate paper with the clerk headed “Notice of
Change of Address.” He also must comply with the Court's orders in a timely fashion. Failure to
do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of
Civil Procedure 41(b). Reasonable requests for an extension of a deadline will be allowed upon a
showing of good cause if the request is filed prior to the deadline.
SO ORDERED.
Dated: October 13, 2026
Susan van Keulen
United States Magistrate Judge
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