1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CORREY MITCHELL, Case No. 23-cv-00141-JSW
8 Plaintiff, ORDER OF PARTIAL DISMISSAL 9 v. AND OF SERVICE
10 CRAMER, et al., Defendants. 11
12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42 14 U.S.C. § 1983 against officials at Salinas Valley State Prison (“SVSP”). He has been granted 15 leave to proceed in forma pauperis in a separate order. For the reasons discussed below, certain 16 claims are dismissed, and the complaint is ordered served on Defendants based on the retaliation 17 claim that is, when liberally construed, cognizable. 18 ANALYSIS 19 A. STANDARD OF REVIEW 20 Federal courts must engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 23 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 24 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 25 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 26 Cir. 1990). 27 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 1 statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon 2 which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 3 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 4 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 5 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 6 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 7 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 8 must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 10 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 11 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 12 487 U.S. 42, 48 (1988). 13 B. LEGAL CLAIMS 14 Plaintiff claims that Defendants retaliated against him for filing grievances, in violation of 15 his First Amendment rights. “Within the prison context, a viable claim of First Amendment 16 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action 17 against an inmate (2) because of (3) that prisoner's protected conduct, and that such action 18 (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not 19 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 20 (9th Cir. 2005). A prisoner may not be retaliated against for using such procedures. Id. at 567. 21 Plaintiff’s claim that Defendants Cramer and Meredith retaliated against him by relieving 22 him of his job assignment because of a grievance he filed is, when liberally construed, cognizable. 23 Plaintiff also alleges that Cramer advised him not to file grievances in the future in order to get a 24 job does not state a separate cognizable retaliation because it does not allege any separate adverse 25 action against Plaintiff. 26 Plaintiff also claims that Defendants violated his right to due process by not following 27 prison regulations relating to removing him from his job assignment. The right to due process is 1 1982) (no constitutional right to job); Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (no right 2 to vocational course for rehabilitation). Accordingly, this claim is not cognizable. 3 CONCLUSION For the reasons set out above, 4 1. The due process and one of the retaliation claims are DISMISSED, as explained above. 5 2. Defendants Assistant Principal Cramer and Lieutenant Meredith shall be served at 6 Salinas Valley State Prison. 7 Service shall proceed under the California Department of Corrections and Rehabilitation’s 8 (CDCR) e-service program for civil rights cases from prisoners in CDCR custody. In accordance 9 with the program, the clerk is directed to serve on CDCR via email the following documents: the 10 Amended Complaint, this Order, a CDCR Report of E-Service Waiver form, and a summons. The 11 clerk also shall serve a copy of this order on the plaintiff. 12 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 13 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 14 listed in this order will be waiving service of process without the need for service by the United 15 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 16 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 17 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of 18 service of process for the defendant(s) who are waiving service. 19 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 20 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 21 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies 22 of this order, the summons, and the operative complaint for service upon each defendant who has 23 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 24 Service Waiver. 25 3. The Defendants shall file an answer in accordance with the Federal Rules of Civil 26 Procedure. 27 4. In order to expedite the resolution of this case: 1 a. No later than 91 days from the date this order is filed, the remaining defendants, 2 including those who have been ordered served above, shall file a motion for summary judgment or 3 other dispositive motion. If defendants are of the opinion that this case cannot be resolved by 4 summary judgment, they shall so inform the court prior to the date the summary judgment motion 5 is due. All papers filed with the court shall be promptly served on the plaintiff. 6 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 7 court and served upon defendants no later than 28 days from the date of service of the motion. 8 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him 9 pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. 10 Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 11 c.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CORREY MITCHELL, Case No. 23-cv-00141-JSW
8 Plaintiff, ORDER OF PARTIAL DISMISSAL 9 v. AND OF SERVICE
10 CRAMER, et al., Defendants. 11
12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42 14 U.S.C. § 1983 against officials at Salinas Valley State Prison (“SVSP”). He has been granted 15 leave to proceed in forma pauperis in a separate order. For the reasons discussed below, certain 16 claims are dismissed, and the complaint is ordered served on Defendants based on the retaliation 17 claim that is, when liberally construed, cognizable. 18 ANALYSIS 19 A. STANDARD OF REVIEW 20 Federal courts must engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 23 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 24 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 25 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 26 Cir. 1990). 27 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 1 statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon 2 which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 3 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 4 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 5 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 6 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 7 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 8 must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 10 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 11 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 12 487 U.S. 42, 48 (1988). 13 B. LEGAL CLAIMS 14 Plaintiff claims that Defendants retaliated against him for filing grievances, in violation of 15 his First Amendment rights. “Within the prison context, a viable claim of First Amendment 16 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action 17 against an inmate (2) because of (3) that prisoner's protected conduct, and that such action 18 (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not 19 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 20 (9th Cir. 2005). A prisoner may not be retaliated against for using such procedures. Id. at 567. 21 Plaintiff’s claim that Defendants Cramer and Meredith retaliated against him by relieving 22 him of his job assignment because of a grievance he filed is, when liberally construed, cognizable. 23 Plaintiff also alleges that Cramer advised him not to file grievances in the future in order to get a 24 job does not state a separate cognizable retaliation because it does not allege any separate adverse 25 action against Plaintiff. 26 Plaintiff also claims that Defendants violated his right to due process by not following 27 prison regulations relating to removing him from his job assignment. The right to due process is 1 1982) (no constitutional right to job); Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (no right 2 to vocational course for rehabilitation). Accordingly, this claim is not cognizable. 3 CONCLUSION For the reasons set out above, 4 1. The due process and one of the retaliation claims are DISMISSED, as explained above. 5 2. Defendants Assistant Principal Cramer and Lieutenant Meredith shall be served at 6 Salinas Valley State Prison. 7 Service shall proceed under the California Department of Corrections and Rehabilitation’s 8 (CDCR) e-service program for civil rights cases from prisoners in CDCR custody. In accordance 9 with the program, the clerk is directed to serve on CDCR via email the following documents: the 10 Amended Complaint, this Order, a CDCR Report of E-Service Waiver form, and a summons. The 11 clerk also shall serve a copy of this order on the plaintiff. 12 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 13 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 14 listed in this order will be waiving service of process without the need for service by the United 15 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 16 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 17 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of 18 service of process for the defendant(s) who are waiving service. 19 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 20 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 21 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies 22 of this order, the summons, and the operative complaint for service upon each defendant who has 23 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 24 Service Waiver. 25 3. The Defendants shall file an answer in accordance with the Federal Rules of Civil 26 Procedure. 27 4. In order to expedite the resolution of this case: 1 a. No later than 91 days from the date this order is filed, the remaining defendants, 2 including those who have been ordered served above, shall file a motion for summary judgment or 3 other dispositive motion. If defendants are of the opinion that this case cannot be resolved by 4 summary judgment, they shall so inform the court prior to the date the summary judgment motion 5 is due. All papers filed with the court shall be promptly served on the plaintiff. 6 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 7 court and served upon defendants no later than 28 days from the date of service of the motion. 8 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him 9 pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. 10 Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 11 c. Defendants shall file a reply brief no later than 14 days after the date of service 12 of the opposition. 13 d. The motion shall be deemed submitted as of the date the reply brief is due. No 14 hearing will be held on the motion unless the court so orders at a later date. 15 e. Along with his motion, defendants shall file proof that they served plaintiff the 16 Rand warning at the same time they served him with their motion. Failure to do so will result in 17 the summary dismissal of their motion. 18 5. All communications by the plaintiff with the court must be served on defendants, or 19 defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 20 defendants or their counsel. 21 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 22 further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required 23 before the parties may conduct discovery. 24 Plaintiff is reminded that state prisoners inmates may review all non-confidential material 25 in their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783 (Cal. Ct. App. 26 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 27 Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. Requests to 1 to the court. 2 7. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 3 informed of any change of address and must comply with the court's orders in a timely fashion. 4 || Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 5 Federal Rule of Civil Procedure 41(b). 6 IT IS SO ORDERED. 7 Dated: February 7, 2023 a | : bla □□□ i 9 \ l As ‘ AEFFREY S. WHITE 10 Unite States (istrict Judge 1 ¥
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1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If Defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in Defendant's declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 18 19 20 21 22 23 24 25 26 27