1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 EDGAR AGUILAR, 11 Case No. 23-cv-05313 NC (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING v. DEFENDANTS TO FILE 13 DISPOSITIVE MOTION OR NAPA COUNTY BOARD OF NOTICE REGARDING SUCH 14 SUPERVISORS, et al., MOTION; INSTRUCTIONS TO CLERK 15 Defendants. 16
17 18 Plaintiff, a state prisoner, filed a pro se civil rights complaint pursuant to 42 U.S.C. 19 § 1983, concerning events which occurred at a jail while in the custody of the Napa 20 County Department of Corrections (“NDOC”), where Plaintiff was temporarily housed 21 before his transfer to a state prison. Dkt. No. 1 at 1. Plaintiff consented to magistrate judge 22 jurisdiction. Dkt. No. 3. Plaintiff’s motion for leave to proceed in forma pauperis will be 23 addressed in a separate order. 24 25 BACKGROUND 26 I. Standard of Review 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any 3 cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a 4 claim upon which relief may be granted, or seek monetary relief from a defendant who is 5 immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings must be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: 8 (1) that a right secured by the Constitution or laws of the United States was violated and 9 (2) that the violation was committed by a person acting under the color of state law. See 10 West v. Atkins, 487 U.S. 42, 48 (1988). 11 II. Plaintiff’s Claims 12 This action involves the confiscation of a hardcover (and perhaps used) book, 13 Garner’s Dictionary of Legal Usage, sent to Plaintiff by his wife on July 9, 2023. Dkt. 14 No. 1 at 3. The book was confiscated under NDOC’s policy of excluding hardcover and 15 used books. Id. at 5. According to the different levels of responses to Plaintiff’s grievance 16 on the matter, the book was placed in his property bag pursuant to that policy and available 17 to be released to a loved one. Id. at 5-6. Plaintiff claims that the categorical ban of 18 hardcover and used books violated his right to free speech under the First Amendment and 19 the excluding and disposal of the book without an opportunity to challenge the exclusion 20 violated his Fourteenth Amendment right to due process. Id. at 6, 8. Plaintiff seeks 21 damages, as well as declaratory and injunctive relief. Id. at 9-10. 22 Liberally construed, Plaintiff has stated cognizable claims that his First and 23 Fourteenth Amendment rights were violated by the confiscation of his book under 24 NDOC’s policy. See Shaw v. Murphy, 532 U.S. 223, 229 (2001) (prison regulation that 25 impinges on prisoner’s First Amendment right to free speech valid only if “reasonably 26 related to legitimate penological interests” under Turner v. Safley, 482 U.S. 78, 89 (1987)); 1 Fourteenth Amendment requires an opportunity “granted at a meaningful time and in a 2 meaningful manner” for a hearing appropriate to the nature of the case). 3 4 CONCLUSION 5 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 6 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 7 of the complaint and all attachments thereto, a magistrate judge jurisdiction consent form, 8 and a copy of this order to the Napa County Board of Supervisors, Director Dina Jose, 9 Assistant Director A.J. Alarcon, Lt. Paul R. Fernandez, Sgt. G. Valesi, and R. Norris 10 at the Napa County Department of Corrections (1125 3rd St., Napa, CA 94559). The 11 Clerk of the Court shall also mail a courtesy copy of the complaint and a copy of this order 12 to the Office of the County Counsel for Napa County (1195 Third St., Suite 301, Napa, CA 13 94559). Additionally, the Clerk shall mail a copy of this order to Plaintiff. 14 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 15 requires them to cooperate in saving unnecessary costs of service of the summons and 16 amended complaint. Pursuant to Rule 4, if Defendants, after being notified of this action 17 and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do 18 so, they will be required to bear the cost of such service unless good cause be shown for 19 their failure to sign and return the waiver form. If service is waived, Defendants will be 20 required to serve and file an answer within sixty (60) days from the date on which the 21 request for waiver was sent to them. Defendants are asked to read the statement set forth 22 at the bottom of the waiver form that more completely describes the duties of the parties 23 with regard to waiver of service of the summons. If service is waived after the date 24 provided in the Notice but before Defendants have been personally served, the Answer 25 shall be due sixty (60) days from the date on which the request for waiver was sent or 26 twenty (20) days from the date the waiver form is filed, whichever is later. 1 3. No later than twenty-eight (28) days from the date the form is sent from the 2 Court, Defendants shall file their Consent or Declination to Magistrate Judge Jurisdiction. 3 4. No later than ninety-one (91) days from the date this order is filed, 4 Defendants shall file a motion for summary judgment or other dispositive motion with 5 respect to the claims in the complaint found to be cognizable above. 6 a. Any motion for summary judgment shall be supported by adequate 7 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 8 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 9 qualified immunity found, if material facts are in dispute. If any Defendant is of the 10 opinion that this case cannot be resolved by summary judgment, he shall so inform the 11 Court prior to the date the summary judgment motion is due. 12 b. In the event Defendants file a motion for summary judgment, the 13 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 14 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 15 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 16 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 17 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 18 motion is filed. 19 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 EDGAR AGUILAR, 11 Case No. 23-cv-05313 NC (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING v. DEFENDANTS TO FILE 13 DISPOSITIVE MOTION OR NAPA COUNTY BOARD OF NOTICE REGARDING SUCH 14 SUPERVISORS, et al., MOTION; INSTRUCTIONS TO CLERK 15 Defendants. 16
17 18 Plaintiff, a state prisoner, filed a pro se civil rights complaint pursuant to 42 U.S.C. 19 § 1983, concerning events which occurred at a jail while in the custody of the Napa 20 County Department of Corrections (“NDOC”), where Plaintiff was temporarily housed 21 before his transfer to a state prison. Dkt. No. 1 at 1. Plaintiff consented to magistrate judge 22 jurisdiction. Dkt. No. 3. Plaintiff’s motion for leave to proceed in forma pauperis will be 23 addressed in a separate order. 24 25 BACKGROUND 26 I. Standard of Review 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any 3 cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a 4 claim upon which relief may be granted, or seek monetary relief from a defendant who is 5 immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings must be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: 8 (1) that a right secured by the Constitution or laws of the United States was violated and 9 (2) that the violation was committed by a person acting under the color of state law. See 10 West v. Atkins, 487 U.S. 42, 48 (1988). 11 II. Plaintiff’s Claims 12 This action involves the confiscation of a hardcover (and perhaps used) book, 13 Garner’s Dictionary of Legal Usage, sent to Plaintiff by his wife on July 9, 2023. Dkt. 14 No. 1 at 3. The book was confiscated under NDOC’s policy of excluding hardcover and 15 used books. Id. at 5. According to the different levels of responses to Plaintiff’s grievance 16 on the matter, the book was placed in his property bag pursuant to that policy and available 17 to be released to a loved one. Id. at 5-6. Plaintiff claims that the categorical ban of 18 hardcover and used books violated his right to free speech under the First Amendment and 19 the excluding and disposal of the book without an opportunity to challenge the exclusion 20 violated his Fourteenth Amendment right to due process. Id. at 6, 8. Plaintiff seeks 21 damages, as well as declaratory and injunctive relief. Id. at 9-10. 22 Liberally construed, Plaintiff has stated cognizable claims that his First and 23 Fourteenth Amendment rights were violated by the confiscation of his book under 24 NDOC’s policy. See Shaw v. Murphy, 532 U.S. 223, 229 (2001) (prison regulation that 25 impinges on prisoner’s First Amendment right to free speech valid only if “reasonably 26 related to legitimate penological interests” under Turner v. Safley, 482 U.S. 78, 89 (1987)); 1 Fourteenth Amendment requires an opportunity “granted at a meaningful time and in a 2 meaningful manner” for a hearing appropriate to the nature of the case). 3 4 CONCLUSION 5 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 6 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 7 of the complaint and all attachments thereto, a magistrate judge jurisdiction consent form, 8 and a copy of this order to the Napa County Board of Supervisors, Director Dina Jose, 9 Assistant Director A.J. Alarcon, Lt. Paul R. Fernandez, Sgt. G. Valesi, and R. Norris 10 at the Napa County Department of Corrections (1125 3rd St., Napa, CA 94559). The 11 Clerk of the Court shall also mail a courtesy copy of the complaint and a copy of this order 12 to the Office of the County Counsel for Napa County (1195 Third St., Suite 301, Napa, CA 13 94559). Additionally, the Clerk shall mail a copy of this order to Plaintiff. 14 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 15 requires them to cooperate in saving unnecessary costs of service of the summons and 16 amended complaint. Pursuant to Rule 4, if Defendants, after being notified of this action 17 and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do 18 so, they will be required to bear the cost of such service unless good cause be shown for 19 their failure to sign and return the waiver form. If service is waived, Defendants will be 20 required to serve and file an answer within sixty (60) days from the date on which the 21 request for waiver was sent to them. Defendants are asked to read the statement set forth 22 at the bottom of the waiver form that more completely describes the duties of the parties 23 with regard to waiver of service of the summons. If service is waived after the date 24 provided in the Notice but before Defendants have been personally served, the Answer 25 shall be due sixty (60) days from the date on which the request for waiver was sent or 26 twenty (20) days from the date the waiver form is filed, whichever is later. 1 3. No later than twenty-eight (28) days from the date the form is sent from the 2 Court, Defendants shall file their Consent or Declination to Magistrate Judge Jurisdiction. 3 4. No later than ninety-one (91) days from the date this order is filed, 4 Defendants shall file a motion for summary judgment or other dispositive motion with 5 respect to the claims in the complaint found to be cognizable above. 6 a. Any motion for summary judgment shall be supported by adequate 7 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 8 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 9 qualified immunity found, if material facts are in dispute. If any Defendant is of the 10 opinion that this case cannot be resolved by summary judgment, he shall so inform the 11 Court prior to the date the summary judgment motion is due. 12 b. In the event Defendants file a motion for summary judgment, the 13 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 14 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 15 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 16 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 17 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 18 motion is filed. 19 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 20 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 21 must come forward with evidence showing triable issues of material fact on every essential 22 element of his claim). Plaintiff is cautioned that failure to file an opposition to 23 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 24 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 25 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 26 F.3d 651, 653 (9th Cir. 1994). 1 Plaintiff’s opposition is filed. 2 7. The motion shall be deemed submitted as of the date the reply brief is due. 3 No hearing will be held on the motion unless the Court so orders at a later date. 4 8. All communications by the Plaintiff with the Court must be served on 5 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 6 copy of the document to Defendants or Defendants’ counsel. 7 9. Discovery may be taken in accordance with the Federal Rules of Civil 8 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 9 Rule 16-1 is required before the parties may conduct discovery. 10 10. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 11 Court informed of any change of address by filing a separate paper with the Clerk headed 12 “Notice of Change of Address.” He also must comply with the Court’s orders in a timely 13 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 14 pursuant to Federal Rule of Civil Procedure 41(b). 15 11. Extensions of time must be filed no later than the deadline sought to be 16 extended and must be accompanied by a showing of good cause. 17 IT IS SO ORDERED. 18 DATED: February 29, 2024 NATHANAEL M. COUSINS 19 United States Magistrate Judge 20 21 22 23 24 25 Order of Service PRO-SE\NC\CR.2023\05313Aguilar_svc 26