1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY M. KING, Case No. 24-cv-05175-JST
8 Plaintiff, ORDER OF PARTIAL SERVICE v. 9
10 ALEJANDRO TELLEZ, et al., Defendants. 11
12 13 Plaintiff, an inmate currently housed at Correctional Training Facility (“CTF”) in Soledad, 14 California, has filed a pro se action pursuant to 42 U.S.C. § 1983. In this order, the Court screens 15 Plaintiff’s complaint (ECF No. 1) pursuant to 28 U.S.C. § 1915A. Plaintiff has been granted leave 16 to proceed in forma pauperis in a separate order. 17 DISCUSSION 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 The complaint names as defendants CTF correctional officer Alejandro Tellez and CTF 12 correctional lieutenant S. Moore. Liberally construed, the complaint states the following 13 cognizable claims. The complaint’s allegations that defendant Tellez wrote two false RVRs— 14 RVR Nos. 7254672 and 727246—in retaliation for Plaintiff filing grievances and a lawsuit states a 15 cognizable First Amendment retaliation claim. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 16 Cir. 2005) (“Within the prison context, a viable claim of First Amendment retaliation entails five 17 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 18 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 19 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 20 correctional goal.”) (footnote omitted). The complaint’s allegation that defendant Moore denied 21 Plaintiff witnesses at the hearing for RVR No. 727246 states a cognizable Fourteenth Amendment 22 claim. In Wolff v. McDonnell, 418 U.S. 539 (1974) and subsequent cases, the Supreme Court set 23 forth the procedural protections required by the Due Process Clause in prison disciplinary 24 violations hearings: written notice of the charges, time to prepare for the hearing, a written 25 statement of decision, allowance of witnesses and documentary evidence when not unduly 26 hazardous, aid to the accused where the inmate is illiterate or the issues are complex, see Wolff, 27 418 U.S. at 564-67; “some evidence” to support the disciplinary finding, see Superintendent v. 1 basis for the disciplinary actions, see Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). 2 However, the allegation that defendant Moore violated the Fourteenth Amendment when 3 he failed to serve as an impartial arbitrator during the RVR hearing is DISMISSED with prejudice 4 because there is no constitutional right to an impartial arbitrator in a prison disciplinary hearing. 5 The Due Process Clause requires only that prisoners be afforded those procedures mandated by 6 Wolff and its progeny; it does not require that prisons comply with their own, more generous 7 procedures. See Walker v. Sumner, 14 F.3d 1415, 1419–20 (9th Cir. 1994), overruled on other 8 grounds by Sandin v. Connor, 515 U.S. 472. A prisoner’s right to due process is violated “only if 9 he [is] not provided with process sufficient to meet the Wolff standard.” Id. at 1420. 10 CONCLUSION 11 For the reasons set forth above, the Court orders as follows. 12 1. The following defendant(s) shall be served: Correctional Training Facility officers 13 Alejandro Tellez and S. Moore. 14 2. Service on the listed defendant(s) shall proceed under the California Department of 15 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners 16 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the 17 CDCR via email the following documents: the operative complaint (ECF No. 1), this order of 18 service, a CDCR Report of E-Service Waiver form and a summons. The Clerk also shall serve a 19 copy of this order on the Plaintiff. 20 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 21 provide the court a completed CDCR Report of E-Service Waiver advising the court which 22 defendant(s) listed in this order will be waiving service of process without the need for service by 23 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 24 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 25 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 26 a waiver of service of process for the defendant(s) who are waiving service. 27 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 1 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 2 of this order, the summons, and the operative complaint for service upon each defendant who has 3 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 4 Service Waiver. 5 3. The Court DISMISSES with prejudice the claim that defendant Moore violated the 6 Fourteenth Amendment when he failed to serve as an impartial arbitrator during the hearing for 7 RVR No. 727246.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY M. KING, Case No. 24-cv-05175-JST
8 Plaintiff, ORDER OF PARTIAL SERVICE v. 9
10 ALEJANDRO TELLEZ, et al., Defendants. 11
12 13 Plaintiff, an inmate currently housed at Correctional Training Facility (“CTF”) in Soledad, 14 California, has filed a pro se action pursuant to 42 U.S.C. § 1983. In this order, the Court screens 15 Plaintiff’s complaint (ECF No. 1) pursuant to 28 U.S.C. § 1915A. Plaintiff has been granted leave 16 to proceed in forma pauperis in a separate order. 17 DISCUSSION 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 The complaint names as defendants CTF correctional officer Alejandro Tellez and CTF 12 correctional lieutenant S. Moore. Liberally construed, the complaint states the following 13 cognizable claims. The complaint’s allegations that defendant Tellez wrote two false RVRs— 14 RVR Nos. 7254672 and 727246—in retaliation for Plaintiff filing grievances and a lawsuit states a 15 cognizable First Amendment retaliation claim. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 16 Cir. 2005) (“Within the prison context, a viable claim of First Amendment retaliation entails five 17 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 18 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 19 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 20 correctional goal.”) (footnote omitted). The complaint’s allegation that defendant Moore denied 21 Plaintiff witnesses at the hearing for RVR No. 727246 states a cognizable Fourteenth Amendment 22 claim. In Wolff v. McDonnell, 418 U.S. 539 (1974) and subsequent cases, the Supreme Court set 23 forth the procedural protections required by the Due Process Clause in prison disciplinary 24 violations hearings: written notice of the charges, time to prepare for the hearing, a written 25 statement of decision, allowance of witnesses and documentary evidence when not unduly 26 hazardous, aid to the accused where the inmate is illiterate or the issues are complex, see Wolff, 27 418 U.S. at 564-67; “some evidence” to support the disciplinary finding, see Superintendent v. 1 basis for the disciplinary actions, see Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). 2 However, the allegation that defendant Moore violated the Fourteenth Amendment when 3 he failed to serve as an impartial arbitrator during the RVR hearing is DISMISSED with prejudice 4 because there is no constitutional right to an impartial arbitrator in a prison disciplinary hearing. 5 The Due Process Clause requires only that prisoners be afforded those procedures mandated by 6 Wolff and its progeny; it does not require that prisons comply with their own, more generous 7 procedures. See Walker v. Sumner, 14 F.3d 1415, 1419–20 (9th Cir. 1994), overruled on other 8 grounds by Sandin v. Connor, 515 U.S. 472. A prisoner’s right to due process is violated “only if 9 he [is] not provided with process sufficient to meet the Wolff standard.” Id. at 1420. 10 CONCLUSION 11 For the reasons set forth above, the Court orders as follows. 12 1. The following defendant(s) shall be served: Correctional Training Facility officers 13 Alejandro Tellez and S. Moore. 14 2. Service on the listed defendant(s) shall proceed under the California Department of 15 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners 16 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the 17 CDCR via email the following documents: the operative complaint (ECF No. 1), this order of 18 service, a CDCR Report of E-Service Waiver form and a summons. The Clerk also shall serve a 19 copy of this order on the Plaintiff. 20 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 21 provide the court a completed CDCR Report of E-Service Waiver advising the court which 22 defendant(s) listed in this order will be waiving service of process without the need for service by 23 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 24 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 25 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 26 a waiver of service of process for the defendant(s) who are waiving service. 27 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 1 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 2 of this order, the summons, and the operative complaint for service upon each defendant who has 3 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 4 Service Waiver. 5 3. The Court DISMISSES with prejudice the claim that defendant Moore violated the 6 Fourteenth Amendment when he failed to serve as an impartial arbitrator during the hearing for 7 RVR No. 727246. 8 4. As detailed above, the complaint states a cognizable First Amendment retaliation 9 claim against defendant Tellez, and a cognizable Fourteenth Amendment claim against defendant 10 Moore. 11 5. In order to expedite the resolution of this case, the Court orders as follows: 12 a. No later than 91 days from the date this order is filed, Defendant(s) must 13 file and serve a motion for summary judgment or other dispositive motion. If Defendant(s) is(are) 14 of the opinion that this case cannot be resolved by summary judgment, Defendants must so inform 15 the Court prior to the date the motion is due. A motion for summary judgment also must be 16 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what 17 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 18 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 19 served concurrently with motion for summary judgment).1 20 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 21 must be filed with the Court and served upon Defendant(s) no later than 28 days from the date the 22 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 23 provided later in this order as he prepares his opposition to any motion for summary judgment. 24 Defendant(s) shall file a reply brief no later than 14 days after the date the opposition is filed. The 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 1 motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on 2 the motion. 3 6. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 4 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 5 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 6 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 7 any fact that would affect the result of your case, the party who asked for summary judgment is 8 entitled to judgment as a matter of law, which will end your case. When a party you are suing 9 makes a motion for summary judgment that is properly supported by declarations (or other sworn 10 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 11 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 12 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and 13 documents and show that there is a genuine issue of material fact for trial. If you do not submit 14 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 15 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 16 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 17 not excuse Defendants’ obligation to serve said notice again concurrently with a motion for 18 summary judgment. Woods, 684 F.3d at 939). 19 7. All communications by Plaintiff with the Court must be served on Defendants’ 20 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard 21 any document which a party files but fails to send a copy of to his opponent. Until Defendants’ 22 counsel has been designated, Plaintiff may mail a true copy of the document directly to 23 Defendants but once Defendants are represented by counsel, all documents must be mailed to 24 counsel rather than directly to Defendants. 25 8. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 26 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 27 before the parties may conduct discovery. 1 Court informed of any change of address and must comply with the Court’s orders in a timely 2 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 3 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 4 || pending case every time he is moved to a new facility. 5 10. Any motion for an extension of time must be filed no later than the deadline sought 6 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 7 he must include the case name and case number for this case on any document he submits to the 8 || Court for consideration in this case. 9 IT IS SO ORDERED.
10 Dated: December 27, 2024 11 JON S. TIGAR 12 nited States District Judge
15 16
= 17
Z 18 19 20 21 22 23 24 25 26 27 28