Hash v. Giacomazzi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 LAWRENCE G. HASH, 11 Case No. 22-cv-07162 EJD (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING PLAINTIFF TO FILE v. 13 SUPPLEMENTAL PLEADING

REGARDING STATE LAW CLAIMS; 14 DIRECTING DEFENDANTS TO FILE M. GIACOMAZZI, et al., DISPOSITIVE MOTION OR NOTICE 15 REGARDING SUCH MOTION; Defendants. INSTRUCTIONS TO CLERK 16

18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against numerous prison staff at San Quentin State Prison (“SQSP”) and 20 other individuals. The original action was filed under Hash v. Giacomazzi, et al., Case No. 21 20-cv-01116 EJD (PR) (hereinafter “Case No. 20-01116”). In accordance with Plaintiff’s 22 notice of election, the instant action was opened with Plaintiff’s “second amended 23 complaint” to pursue claim 4 from the amended complaint, which attacked the sufficiency 24 of evidence to support an RVR issued by Defendant Giacomazzi on March 5, 2016. See 25 Dkt. No. 4 at 5. In accordance with the screening order and elections filed by Plaintiff, this 26 action shall proceed on that claim if the complaint states sufficient facts in support. Dkt. 27 No. 3 at 10-11. 1 DISCUSSION 2 I. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 II. Plaintiff’s Claims 15 In re-screening of the amended complaint in Case No. 20-cv-01116, the Court 16 stated the following regarding claim 4:

17 Under claim 4, Plaintiff challenges a separate RVR for “possession of a 18 deadly weapon” issued by Defendant Giacomazzi on March 5, 2016, based on procedural due process violations. [Dkt.] No. 15 at 54, 56, 58. Plaintiff 19 claims the written notice was “defective” because it was not consistent with the charged offense and there was no evidence that Plaintiff possessed a 20 deadly weapon because the razor blade that was found did not satisfy the 21 statutory definition for a “deadly weapon.” Id. Plaintiff claims Defendant Giacomazzi is liable as the reporting employee, and various other 22 Defendants who were involved in reviewing, classifying, and investigating 23 the matter, as well as those involved in Plaintiff’s appeal of it. Dkt. No. 15- 1 at 58-64. Plaintiff claims Defendants knew or should have known that 24 the RVR did not meet the definition of a “deadly weapon.” Id. at 64.

25 Liberally construed, Plaintiff appears to be attempting to state a procedural 26 due process claim under Hill, 472 U.S. at 454, based on insufficient evidence. However, the allegations are insufficient because the amended 27 complaint does not indicate whether Plaintiff lost any good-time credits due Accordingly, this claim shall be dismissed with leave to amend. In 1 amending, Plaintiff is advised that he must allege sufficient facts to 2 establish individual liability against each named Defendant. See supra at 6. Furthermore, for the reasons discussed below, this claim may be subject to 3 severance from this action if the amendment violates Rule 18(a) or Rule 20(a). 4

5 Id., Dkt. No. 28 at 11-12. Plaintiff’s filing of a second amended complaint1 indicated that 6 he believed this matter should be severed. Id. at 16. Plaintiff presents the following 7 statement of facts. 8 A. Background 9 Plaintiff arrived at SQSP on February 10, 2014, and housed in general population in 10 West-Block until June 14, 2014. Dkt. No. 1 at 8. Plaintiff was then moved to 11 administrative segregation (“ad-seg”) until January 9, 2015, for a Rules Violation Report 12 (“RVR”) which is not relevant to this action. Id. Plaintiff was then housed in general 13 population in North-Block. Id. Then from February 9, 2015, to February 4, 2016, Plaintiff 14 was moved back to West-Block. Id. 15 Plaintiff claims that SQSP’s Investigative Services Unit (“ISU”) was systematically 16 harassing and retaliating against inmates for making inmate requests (CDCR Form 22), 17 filing grievances (CDCR-602) and lawsuits that adversely involved staff members. Id. 18 Plaintiff claims the harassment included cell searches, confiscation of papers, and 19 placement in ad-seg pending transfer to another prison. Id. at 9. Plaintiff claims that staff 20 members were also using “unknown anonymous notes” that contained threats to staff 21 members as a “pretext” to place inmates in ad-seg and eventually transfer them to another 22 prison. Id. Plaintiff claims that during the times he was housed in West-Block, he assisted 23 numerous inmates in filing grievances and lawsuits. Id. He describes various inmates 24 whom he helped file grievances which lead to retaliatory actions by staff members. Id. at 25 10-13. 26

27 1 On February 4, 2016, Plaintiff claims ISU officers came to his cell and accused him 2 of harassing staff members with Form 22s (Inmate/Parolee Request for Interview, Item or 3 Service) and CDCR-602s (Inmate/Parolee Appeal). Id. at 13. Plaintiff was ordered out of 4 his cell and searched. Id. Defendants Giacomazzi, C. Bass, C. Fry, and P.G. Hannah then 5 ransacked his cell and confiscated evidence “to confirm their accusations that [Plaintiff] 6 was harassing… staff members.” Id. at 13-14. Plaintiff then describes staff members 7 accusing him of authoring several anonymous notes containing threats to staff. Id. at 14- 8 18. At some point, Plaintiff was rehoused in the Adjustment Center. Id. at 19. In late 9 February 2016, Plaintiff sought access to his legal documents to prepare a petition for writ 10 of habeas corpus in the state high court; however, most of his requests were ignored. Id. at 11 19. Plaintiff went on a hunger strike on February 23, 2016, until his legal documents were 12 returned. Id. at 20. He was informed that Defendant Giacomazzi was still searching 13 through his legal property. Id. Plaintiff learned from other inmates that they had also been 14 accused of writing the same anonymous notes containing threats to staff. Id. at 21-22. 15 Plaintiff describes being issued several RVRs for the notes, and that other inmates were 16 also charged with authoring the same threatening notes. Id. at 22-23. Those RVRs are the 17 subject of Plaintiff’s claims which are proceeding under the initial action, Case No. 20- 18 01116; the retaliatory cell search on February 4, 2016, is the subject of a separate action 19 under Case No. 22-07014. 20 B. RVR Log #4690 21 The subject of this action is an RVR which was issued later in March 2016. 22 Plaintiff claims that on March 5, 2016, Defendant Giacomazzi intentionally searched his 23 cell while Plaintiff was in the shower. Dkt. No. 1 at 24. Plaintiff claims this cell search 24 was not random but “special,” and that under state regulations, he should have been 25 allowed to observe the search to prevent contraband from being planted in his cell. Id. at 26 24. Defendant Giacomazzi came to Plaintiff’s shower stall about 30-40 minutes later, 27 holding a “‘brand-new[i]sh looking’ single-sided hardbacked razor blade.” Id. Defendant 1 immediately denied that the razor blade was his and accused Defendant of falsely claiming 2 to have discovered it in his cell. Dkt. No. 1-1 at 1. Plaintiff claims Defendant 3 Giacomazzi’s actions were an “extension” of the original retaliatory search on February 4, 4 2016. Id. 5 Defendant Giacomazzi issued an RVR, Log #4690, which stated that he searched 6 Plaintiff’s cell with Defendant Acero, who observed the discovery of the razor-blade in the 7 cell. Id. at 3. However, Defendant Acero later admitted that he never entered the cell nor 8 took part in the search. Id. at 3-4. The RVR also failed to provide Plaintiff with adequate 9 “notice” of the charge because the cited regulation does not exist and it was not made 10 known to all inmates that razor-blades were a controlled item or a “deadly weapon.” Id. at 11 4. Plaintiff also claims he had no notice that the possession of a razor blade was 12 considered an “A-1 offense,” subjecting him to the loss of 360 days of good time credits. 13 Id. at 5-6. 14 On or about March 18, 2016, Plaintiff had an audio-taped interview with Internal 15 Affairs officers, Lt. McGraw and Sgt. Armas. Id. at 7. Plaintiff told them that Defendant 16 Giacomazzi had planted the razor-blade in his cell. Id. At the disciplinary hearing on 17 April 17, 2016, Plaintiff claims he was not allowed to ask questions to Officer Acero, who 18 had admitted to Plaintiff that he had only observed the cell being searched from the cell 19 door. Id. at 8. Plaintiff was found guilty of the charge. Id. Plaintiff appealed, and on May 20 1, 2016, the guilty finding was vacated; the RVR was to be reissued/reheard to correct the 21 due process deficiencies from the first hearing. Id. at 9. 22 The RVR was reissued on May 12, 2016. Id. The rehearing took place on June 23, 23 2016, with Defendant Lt. Bloise. Id. at 12. When Plaintiff asked to be placed in waist- 24 chains for the hearing, he was taken outside while his witnesses, Officers M. Tousey and 25 Defendant J. Miller, remained inside, which was in violation of prison regulations. Id. at 26 12-13. When Plaintiff pointed out the violation, Lt. Bloise allegedly became angry and 27 ordered Plaintiff to step out of the room again while she discussed the problem with 1 despite Plaintiff’s protests, with Lt. Bloise allegedly acting in a confrontational manner 2 throughout the proceedings and denied Plaintiff the right to adequately question the 3 witnesses without justification. Id. at 13-18. Lt. Bloise found Plaintiff guilty of the charge 4 and imposed 360 days loss of good time credits.2 Id. at 18. Plaintiff filed a grievance 5 challenging the RVR, alleging numerous violations of the regulations during the 6 disciplinary proceedings. Id. at 19. The appeals were denied at the second and third 7 levels. Id. at 23-26. Plaintiff claims that he had a protected liberty interest and that the 8 conditions in ad-seg were atypical and significant compared to the ordinary incidents of 9 prison life. Dkt. No. 1-2 at 2-5. Plaintiff claims that he was subjected to an 8-month SHU 10 term and an adverse transfer to Pelican Bay State Prison, a higher security prison. Dkt. 11 No. 1-1 at 19. 12 C. Analysis 13 Plaintiff asserts “one” claim under the First, Fifth, and Fourteenth Amendments 14 based on lack of fair notice, insufficient evidence, retaliation, and denial of due process. 15 Dkt. No. 1 at 7. Plaintiff also requests the Court exercise supplemental jurisdiction over 16 state law claims. Id. at 7-8. Plaintiff then asserts three “causes of actions”: (1) failure to 17 provide fair notice, violating due process, id. at 7; (2) insufficient evidence to support the 18 RVR, violating due process, id. at 18; and (3) First Amendment retaliation, id. at 28. 19 Plaintiff seeks declaratory and injunctive relief, including expungement of the RVR, 20 and damages. Dkt. No. 1-4 at 40-42. 21 1. Due Process - Insufficient Notice and Hearing 22 Prisoners retain their right to due process subject to the restrictions imposed by the 23 nature of the penal system. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Thus, 24 although prison disciplinary proceedings are not part of a criminal prosecution and the full 25 2 The Court found that Plaintiff may pursue an action under § 1983, challenging the RVRs 26 that resulted in the loss of good time credits. See Case No. 20-01116 EJD (PR), Dkt. No. 14 at 3. Plaintiff is sentenced to an indeterminate sentence and his MEPD had passed, 27 such that success on his claims would not necessarily shorten in his sentence nor call into 1 panoply of rights due a defendant in such proceedings does not apply, where serious rules 2 violations are alleged and the sanctions to be applied implicate state statutes or regulations 3 which narrowly restrict the power of prison officials to impose the sanctions and the 4 sanctions are severe, the Due Process Clause requires certain minimum procedural 5 protections. See id. at 556-57, 571-72 n.19. The placement of a California prisoner in 6 isolation or segregation, or the assessment of good-time credits against him, as a result of 7 disciplinary proceedings, for example, is subject to Wolff’s procedural protections3 if (1) 8 state statutes or regulations narrowly restrict the power of prison officials to impose the 9 deprivation, and (2) the liberty in question is one of “real substance.” See Sandin v. 10 Conner, 515 U.S. 472, 477-87 (1995). 11 Violation of procedural due process rights requires only procedural correction and 12 not a reinstatement of the substantive right. See Raditch v. United States, 929 F.2d 478, 13 481 (9th Cir. 1991). In § 1983 cases, a plaintiff can recover compensatory damages for a 14 proven due process violation only if the deprivation of the substantive right was unjustified 15 on the merits. If, on the other hand, it is determined after post-deprivation procedures that 16 the deprivation was justified, a plaintiff can recover only nominal damages for the due 17 process violation. See id. at 481 n.5 (citing Carey v. Piphus, 435 U.S. 247, 266-67 (1978); 18 Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 781 (9th Cir. 1982)). In other 19 words, the remedy for an unfair hearing is another hearing. If plaintiff is provided with a 20

21 3 Wolff established five procedural requirements. First, “written notice of the charges must be given to the disciplinary-action defendant in order to inform him of the charges and to 22 enable him to marshal the facts and prepare a defense.” 418 U.S. at 564. Second, “at least a brief period of time after the notice, no less than 24 hours, should be allowed to the 23 inmate to prepare for the appearance before the [disciplinary committee].” Id. Third, “there must be a ‘written statement by the factfinders as to the evidence relied on and 24 reasons’ for the disciplinary action.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Fourth, “the inmate facing disciplinary proceedings should be allowed to call 25 witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” Id. at 566. 26 Fifth, “[w]here an illiterate inmate is involved . . . or where the complexity of the issues makes it unlikely that the inmate will be able to collect and present the evidence necessary 27 for an adequate comprehension of the case, he should be free to seek the aid of a fellow 1 rehearing and is again found guilty, there can be no showing that the deprivation was 2 unjustified on the merits and plaintiff is limited to nominal damages. If, on the other hand, 3 a rehearing is held and plaintiff prevails, he may be entitled to compensatory damages. 4 This claim regarding notice was not raised in the preceding complaint. 5 Nevertheless, Plaintiff’s allegations are sufficient to state a due process claim based on the 6 failure to provide adequate notice of the charges in the RVR at issue, against Defendants 7 Giacomazzi, Dorsey, and Petrovic4 under Wolff. Dkt. No. 1-2 at 8. The allegations are 8 also sufficient to state a claim against Lt. Bloise, the SHO for the rehearing who found 9 Plaintiff guilty of the RVR while denying him the opportunity to adequately question 10 witnesses and failing to make specific findings, and Defendant P. Covello who signed off 11 on the guilty finding. Id. at 14, 15; Dkt. No. 1-3 at 9-13; Dkt. No. 2-1 at 43. These five 12 Defendants, along with J. Laniar, who was the SHO for the initial RVR, may be liable for 13 at least nominal damages for the due process violations. 14 With respect to the other named Defendants for this claim, Plaintiff fails to state a 15 claim against them. Defendants Holt, Miller, Mok, Stragalinos, Morgan, Ancheta, and 16 Acero appear to have been involved in investigating and gathering information but not in 17 the issuance of the actual RVR containing the inadequate notice. Dkt. No. 1-2 at 12-13, 18 17. Plaintiff makes conclusory assertions that these Defendants “failed to perform the 19 legal act of seeing that [Plaintiff] was provided adequate ‘notice,’” which is not sufficient 20 to establish that they omitted to perform an act which they were legally required to do, 21 causing the due process violation. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). 22 Furthermore, Plaintiff wants to hold Defendants Davis, Andres, and Cruzen liable for their 23 part in a subsequent ICC Committee hearing at which some sort of unexplained discipline 24 was imposed. Dkt. No. 1-1 at 18; Dkt. No. 1-2 at 63, 15, 18. However, whatever took 25 place after the challenged disciplinary hearing cannot be used to establish causation for the 26 inadequate notice in the RVR. In other words, because these Defendants were not directly 27 1 involved in the RVRs or the related disciplinary hearings, it cannot be said that their 2 actions or inactions after the fact both actually and proximately caused the due process 3 violation which Plaintiff claims. See Lemire v. Cal. Dept. of Corrections & Rehabilitation, 4 726 F.3d 1062, 1085 (9th Cir. 2013). 5 Plaintiff also fails to state a due process claim against Defendants who were 6 involved in the inmate appeals on the RVR, specifically Defendants Collins, Koenig, 7 Shirley, Voong, Schlooser, and Knight. Dkt. No. 15-18. Plaintiff disagrees with their 8 reasoning in denying his appeals for the RVR. However, these Defendants are not liable 9 for the same reason as the Defendants discussed in the previous paragraph: lack of 10 causation. These Defendants were also not involved in the RVRs or the related 11 disciplinary hearings, and therefore it cannot be said that their actions or inactions both 12 actually and proximately caused the due process violation which Plaintiff claims. See 13 Lemire, 726 F.3d at 1085. Plaintiff’s conclusory allegation that these Defendants 14 “participated in Defendant Giacomazzi, Dorsey, and Petrovic’s affirmative acts that caused 15 the deprivation of which [Plaintiff] complains,” id. 14-18, simply does not establish 16 causation for the due process violations. 17 The complaint in this action is essentially an amended complaint to the operative 18 complaint filed in Case No. 20-01116. The Court does not find that justice requires 19 Plaintiff be granted leave to amend to correct these pleading deficiencies where he had 20 previously filed an amended complaint. See Wagh v. Metris Direct, Inc., 363 F.3d 821, 21 830 (9th Cir. 2003); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 22 Accordingly, the claim against these other Defendants shall be dismissed for failure to 23 state a claim. 24 Based on the foregoing, this due process claim shall proceed solely against 25 Defendants Giacomazzi, Dorsey, Petrovic, Bloise, Covello, and Laniar. 26 2. Due Process - Insufficient Evidence 27 In Superintendent v. Hill, 472 U.S. 445, 454 (1985), the Court held that the 1 procedural due process in Wolff unless the findings of the prison disciplinary board are 2 supported by some evidence in the record. The standard for the modicum of evidence 3 required is met if there was some evidence from which the conclusion of the administrative 4 tribunal could be deduced. See id. at 455. An examination of the entire record is not 5 required nor is an independent assessment of the credibility of witnesses or weighing of the 6 evidence. See id. The relevant question is whether there is any evidence in the record that 7 could support the conclusion reached by the disciplinary board. See id. The Court 8 reiterated that revocation of good-time credits is not comparable to a criminal conviction 9 and neither the amount of evidence necessary to support such a conviction, nor any other 10 standard greater than some evidence, applies in this context. See id. at 456. 11 Plaintiff’s allegations are sufficient to state a claim under Hill, challenging the 12 sufficiency of the evidence against Defendants Giacomazzi, Dorsey, Petrovic, Bloise, and 13 Covello who were directly involved with the challenged RVR and the rehearing in which 14 Plaintiff was found guilty. 15 Plaintiff wants to hold liable the other staff members involved in the RVR process 16 for violating various state regulations. Dkt. No. 1-3 at 14-21. However, the Due Process 17 Clause only requires that prisoners be afforded those procedures mandated by Wolff and 18 its progeny; it does not require that prisons comply with its own, more generous 19 procedures. See Walker v. Sumner, 14 F.3d 1415, 1419-20 (9th Cir. 1994). “[I]f state 20 procedures rise above the floor set by the due process clause, a state could fail to follow its 21 own procedures yet still provide sufficient process to survive constitutional scrutiny.” 22 Rogers v. Okin, 738 F.2d 1, 8 (1st Cir. 1984); accord Bostic v. Carlson, 884 F.2d 1267, 23 1270 (9th Cir. 1989) (prison’s failure to meet its own guideline requiring hearing to be 24 held in 8 days of charge would not alone constitute denial of due process), overruled on 25 other grounds by Nettles v. Grounds, No. 12-16935 (9th Cir. July 26, 2016) (en banc). A 26 prisoner’s right to due process is violated “only if he [is] not provided with process 27 sufficient to meet the Wolff standard.” Walker, 14 F.3d at 1420. Accordingly, the claims 1 process claim under § 1983 and shall be dismissed. 2 Plaintiff requests the Court take supplemental jurisdiction over state law claims. 3 Dkt. No. 1 at 7-8. The Court shall do so under 28 U.S.C. § 1367(c). However, Plaintiff 4 must file a supplemental pleading identifying each Defendant who violated the specific 5 state regulations discussed in the complaint because those sections do not explain which 6 specific Defendant was responsible for the violation. See Dkt. No. 1-3 at 11, 14-21. 7 3. Retaliation 8 “Within the prison context, a viable claim of First Amendment retaliation entails 9 five basic elements: (1) An assertion that a state actor took some adverse action against an 10 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 11 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 12 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 13 Cir. 2005) (footnote omitted). 14 Plaintiff claims that he was “framed” for possession of a deadly weapon, and that 15 such action was done in retaliation for engaging in protected conduct. Dkt. No. 1-3 at 28- 16 29. Plaintiff claims that he has a right to written notice of the charges and that state rules 17 require that an offense be defined with sufficient definiteness “that inmates can understand 18 what conduct is prohibited and in a manner that does not encourage arbitrary and 19 discriminatory enforcement.” Id. at 28. Plaintiff claims that the RVR at issue did not 20 satisfy this requirement. Id. at 29. Plaintiff also claims that under state regulations, 21 employees are responsible for enforcing the relevant laws, regulations, and procedures, 22 including the “specific charge” element. Id. Based on this reasoning, Plaintiff asserts that 23 numerous “Defendants’ actions or inactions constituted ‘retaliatory behavior’ towards 24 Plaintiff.” Id. 25 Plaintiff’s allegations are sufficient to state a retaliation claim against Defendants 26 Petrovic, Giacomazzi, and Dorsey based on the following: (1) Defendants took adverse 27 action against Plaintiff when they issued a “false” RVR (2) because of (3) Plaintiff’s 1 Amendment rights, and (5) did not reasonable advance a legitimate correctional goal. Dkt. 2 No. 1-3 at 30-41. Plaintiff’s allegations are also sufficient to state a retaliation claim 3 against Defendant Bloise based on her conduct at the hearing and the guilty finding. Dkt. 4 No. 1-4 at 9-12. 5 With regard to the remaining Defendants, Plaintiff fails to state a retaliation claim 6 against them because he cannot establish that they took adverse action against him because 7 of Plaintiff’s protected conduct, to satisfy the second element under Rhodes. He asserts 8 that he named these Defendants in several CDCR-Form-22s, the first of which was filed on 9 May 13, 2016, notifying them of their responsibility to ensure that he is provided with 10 proper “notice” of the specific charge against him under state regulations. Dkt. No. 1-3 at 11 41-43, Dkt. No. 1-4 at 1-37. However, he filed these forms well after the initial RVR was 12 issued on March 5, 2016, and even after the initial RVR was vacated on May 1, 2016, and 13 reissued on March 12, 2016. See Dkt. No. 2-3 at 19-44 (Ex. I-G). Accordingly, it cannot 14 be said that any of Defendants took adverse action against Plaintiff with respect to the 15 challenged RVR because of protected conduct that occurred after the RVR had already 16 been issued. Therefore, Plaintiff’s allegations are insufficient to state a claim against these 17 Defendants. 18 As stated above, the Court does not find that justice requires Plaintiff be granted 19 leave to amend to correct these pleading deficiencies where he had previously filed an 20 amended complaint. See supra at 10; Wagh, 363 F.3d at 830; Ferdik, 963 F.2d at 1261. 21 Accordingly, the retaliation claim against these other Defendants shall be dismissed for 22 failure to state a claim. 23 III. Filing Date 24 Plaintiff filed a request for clarification regarding the status of his pending cases. 25 Dkt. No. 6. The Court has thoroughly responded to that letter in Case No. 20-01116. See 26 Hash v. Giacomazzi, et al., Case No. 20-cv-01116 EJD (PR), Dkt. No. 67. In that order, 27 the Court found that Plaintiff had shown good cause to change the filing date of this matter 1 action to February 3, 2020. 2 3 CONCLUSION 4 For the foregoing reasons, the Court orders as follows: 5 1. The Clerk shall change the filing date of this action from February 12, 2020, 6 to February 3, 2020. 7 2. Plaintiff shall file a supplemental pleading within twenty-eight (28) days 8 from the date this order is filed, that identifies the Defendants who are liable for the 9 violation of his rights under state regulations discussed in the complaint. See Dkt. No. 1-3 10 at 11, 14-21. The supplemental pleading shall not exceed 10 pages, and simply identify 11 the Defendant, explain his role and involvement in the RVR at issue, and the specific state 12 regulation he violated. 13 If Plaintiff fails to file the supplemental pleading in the time provided, the 14 Court will dismiss the state law claims without prejudice and dismiss all remaining 15 Defendants. 16 The Court will dismiss any remaining Defendants against whom Plaintiff has failed 17 to state any cognizable claim after Plaintiff files the supplemental pleading. 18 3. This action shall proceed on the following claims: (1) due process claim 19 based on insufficient notice and procedural defects at the hearings against Defendants 20 Giacomazzi, Petrovic, Dorsey, Bloise, Covello, and Laniar; (2) due process claim based on 21 insufficient evidence against Defendants Giacomazzi, Petrovic, Dorsey, Bloise, and 22 Covello; and (3) retaliation claim against Defendants Giacomazzi, Petrovic, Dorsey, and 23 Bloise. 24 4. The following defendants who worked at SQSP shall be served: 25 a. Correctional Officer M. Giacomazzi 26 b. Lieutenant Daryl Dorsey 27 c. Sergeant D. Petrovic 1 e. Associate Warden P. Covello 2 f. Lt. J. Laniar 3 Service on the listed defendant(s) shall proceed under the California Department of 4 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 5 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 6 on CDCR via email the following documents: the operative complaint and any attachments 7 thereto, (Dkt. No. 1), this order of service, and a CDCR Report of E-Service Waiver form. 8 The clerk also shall serve a copy of this order on the plaintiff. 9 No later than 40 days after service of this order via email on CDCR, CDCR shall 10 provide the court a completed CDCR Report of E-Service Waiver advising the court which 11 defendant(s) listed in this order will be waiving service of process without the need for 12 service by the United States Marshal Service (USMS) and which defendant(s) decline to 13 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 14 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 15 days, shall file with the court a waiver of service of process for the defendant(s) who are 16 waiving service. 17 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 18 each defendant who has not waived service according to the CDCR Report of E-Service 19 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 20 forms and copies of this order, the summons and the operative complaint for service upon 21 each defendant who has not waived service. The clerk also shall provide to the USMS a 22 copy of the CDCR Report of E-Service Waiver. 23 5. No later than ninety-one (91) days from the date this order is filed, 24 Defendants shall file a motion for summary judgment or other dispositive motion with 25 respect to the claims in the complaint found to be cognizable above. 26 a. Any motion for summary judgment shall be supported by adequate 27 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 1 qualified immunity found, if material facts are in dispute. If any Defendant is of the 2 opinion that this case cannot be resolved by summary judgment, he shall so inform the 3 Court prior to the date the summary judgment motion is due. 4 b. In the event Defendants file a motion for summary judgment, the 5 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 6 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 7 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 8 6. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 9 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 10 motion is filed. 11 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 12 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 13 must come forward with evidence showing triable issues of material fact on every essential 14 element of his claim). Plaintiff is cautioned that failure to file an opposition to 15 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 16 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 17 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 18 F.3d 651, 653 (9th Cir. 1994). 19 7. Defendants shall file a reply brief no later than fourteen (14) days after 20 Plaintiff’s opposition is filed. 21 8. The motion shall be deemed submitted as of the date the reply brief is due. 22 No hearing will be held on the motion unless the Court so orders at a later date. 23 9. All communications by the Plaintiff with the Court must be served on 24 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 25 copy of the document to Defendants or Defendants’ counsel. 26 10. Discovery may be taken in accordance with the Federal Rules of Civil 27 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 1 11. — It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 2 || court informed of any change of address and must comply with the court’s orders in a 3 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 4 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 5 12. Extensions of time must be filed no later than the deadline sought to be 6 || extended and must be accompanied by a showing of good cause. 7 IT ISSO ORDERED. g || Dated: April 10, 2023 aM. EDWARD J. DAVILA 9 United States District Judge 10 11 3 12

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