Jose Oliveras-Beritan v. Shirley Blackburn

Opinion

1 2 3 6 7 JOSE OLIVERAS-BERITAN, Case No. 25-cv-11114-TSH

8 Plaintiff, ORDER OF SERVICE 9 v.

11 Defendant.

12 13 Plaintiff, an inmate housed at Pelican Bay State Prison (“PBSP”), has filed a pro se action 14 pursuant to 42 U.S.C. § 1983. Plaintiff has paid the filing fee, Dkt. No. 8, and consented to 15 magistrate judge jurisdiction, Dkt. No. 9. Plaintiff’s complaint, Dkt, No. 1, is now before the 16 Court for review pursuant to 28 U.S.C. § 1915A. 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 9 U.S. 42, 48 (1988). 10 B. Complaint 11 Plaintiff Oliveras-Beritan is suing Pelican Bay State Prison training officer S. Blackburn 12 for issuing Plaintiff a rules violation report for speaking his native language, Spanish. Plaintiff 13 was found not guilty of the RVR because there is no rule or policy dictating that an inmate cannot 14 speak a foreign language even if the staff member does not understand what is being said. 15 Liberally construed, Plaintiff has stated a cognizable First Amendment retaliation claim against 16 defendant Blackburn. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the 17 prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 18 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 19 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 20 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”) 21 (footnote omitted); Yniguez v. Arizonans for Official English, 69 F.3d 920, 936 (9th Cir. 1995), 22 (striking down Arizona English-only law as facially overbroad and in violation of First 23 Amendment right to speech because decision to speak non-English language implicates pure 24 speech rights), vacated on other grounds sub nom Arizonans for Official English v. Arizona, 520 25 U.S. 43 (1997). 27 For the reasons set forth above, the Court orders as follows. 1 officer S. Blackburn. 2 Service on the listed defendant(s) shall proceed under the California Department of 3 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners 4 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the 5 CDCR via email the following documents: the operative complaint (Dkt. No. 1), this order of 6 service, a CDCR Report of E-Service Waiver form, a summons, and a consent or declination to 7 magistrate judge jurisdiction form. The Clerk also shall serve a copy of this order on the Plaintiff. 8 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 9 provide the court a completed CDCR Report of E-Service Waiver advising the court which 10 defendant(s) listed in this order will be waiving service of process without the need for service by 11 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 12 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 13 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 14 a waiver of service of process for the defendant(s) who are waiving service. 15 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 16 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 17 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 18 of this order, the summons, and the operative complaint for service upon each defendant who has 19 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 20 Service Waiver. 21 2. The complaint states a cognizable First Amendment retaliation claim against 22 defendant S. Blackburn. 23 3. In order to expedite the resolution of this case, the Court orders as follows: 24 a. No later than 91 days from the date this order is filed, Defendant(s) must 25 file and serve a motion for summary judgment or other dispositive motion. If Defendant(s) is(are) 26 of the opinion that this case cannot be resolved by summary judgment, Defendant(s) must so 27 inform the Court prior to the date the motion is due. A motion for summary judgment also must 1 what is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th 2 Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 3 served concurrently with motion for summary judgment).1 4 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 5 must be filed with the Court and served upon Defendant(s) no later than 28 days from the date the 6 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 7 provided later in this order as he prepares his opposition to any motion for summary judgment. 8 Defendant(s) shall file a reply brief no later than 14 days after the date the opposition is filed. The 9 motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on 10 the motion. 11 4. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 12 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 13 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 14 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 15 any fact that would affect the result of your case, and the party who asked for summary judgment 16 is entitled to judgment as a matter of law, which will end your case. When a party you are suing 17 makes a motion for summary judgment that is properly supported by declarations (or other sworn 18 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 19 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 20 as provided in Rule 56(c), that contradict the facts shown in the defendant’s declarations and 21 documents and show that there is a genuine issue of material fact for trial. If you do not submit 22 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 23 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 24 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 25 1 If Defendant(s) assert(s) that Plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), Defendant(s) must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th 27 Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which ] not excuse Defendant’s obligation to serve said notice again concurrently with a motion for 2 |} summary judgment. Woods, 684 F.3d at 939). 3 5. All communications by Plaintiff with the Court must be served on Defendant’s 4 || counsel by mailing a true copy of the document to Defendant’s counsel. The Court may disregard 5 any document which a party files but fails to send a copy of to his opponent. Until Defendant’s 6 || counsel has been designated, Plaintiff may mail a true copy of the document directly to Defendant 7 || but once Defendant is represented by counsel, all documents must be mailed to counsel rather than 8 directly to Defendant. 9 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 10 || No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 11 before the parties may conduct discovery. 12 7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 13 Court informed of any change of address and must comply with the Court’s orders in a timely 14 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 3 15 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every a 16 || pending case every time he is moved to a new facility. 17 8. Any motion for an extension of time must be filed no later than the deadline sought Zz 18 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 19 || he must include the case name and case number for this case on any document he submits to the 20 || Court for consideration in this case. 22 23 Dated: February 23, 2026 . THOMAS S. HIXSON 25 United States Magistrate Judge 26 27 28