1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, Case No. 20-cv-07534 BLF (PR) 11 ORDER OF PARTIAL DISMISSAL 12 Plaintiff, AND OF SERVICE; DENYING MOTION FOR RECUSAL; 13 v. DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR 14 NOTICE REGARDING SUCH M. B. ATCHLEY, et al., MOTION; INSTRUCTIONS TO 15 CLERK Defendants. 16 (Docket No. 39) 17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983, against defendants at Salinas Valley State Prison (“SVSP”). The Court 20 dismissed the original, first, and second amended complaints with leave to amend to 21 correct various deficiencies. Dkt. Nos. 14, 21, 36. The second amended complaint 22 (“SAC”) was dismissed because it violated Rules 18(a) and 20(a) of the Federal Rules of 23 Civil Procedure, i.e., improperly joined unrelated claims against unrelated parties. Dkt. 24 No. 36 at 3-4. The Court also found that the SAC contained insufficient allegations to 25 state a claim against each named defendant. Id. at 4. Plaintiff was granted one final 26 opportunity to file a third amended complaint (“TAC”) to correct the deficiencies. Id. 27 Plaintiff’s TAC is before the Court for an initial review. Dkt. No. 38. 1 DISCUSSION 2 A. 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 governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any 5 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 6 upon which relief may be granted or seek monetary relief from a defendant who is immune 7 from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 8 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 10 elements: (1) that a right secured by the Constitution or laws of the United States was 11 violated, and (2) that the alleged violation was committed by a person acting under the 12 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 13 Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the 14 plaintiff can show that the defendant’s actions both actually and proximately caused the 15 deprivation of a federally protected right. Lemire v. Caifornia Dep’t of Corrections & 16 Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 17 (9th Cir. 1988). A person deprives another of a constitutional right within the meaning of 18 § 1983 if he does an affirmative act, participates in another’s affirmative act or omits to 19 perform an act which he is legally required to do, that causes the deprivation of which the 20 plaintiff complains. Id. at 633. 21 B. Plaintiff’s Claims 22 Plaintiff names one defendant in the TAC: S. Tomlinson, senior/supervising law 23 library at SVSP. Dkt. No. 38 at 2. Plaintiff claims that on July 21, 2020, he gave 24 Defendant Tomlinson his only original habeas corpus petition with exhibits to be copied to 25 be sent to the court. Id. at ¶ 1. Plaintiff claims Defendant read his confidential legal 26 1 Plaintiff’s right to due process under the Fourteenth Amendment. Id. at ¶ 2. When 2 Plaintiff complained, Defendant sounded the alarm and had correctional officers remove 3 Plaintiff from the library in handcuffs, which caused cuts, pain, and bruising. Id. at ¶ 3. 4 The officers later forced Plaintiff to strip in the holding cell in the presence of others and 5 issued him a rules violation report (“RVR”) for the incident. Id. Plaintiff claims these 6 actions violated his rights under the Eighth and First Amendments. Id. Plaintiff filed a 7 grievance which was granted, but his legal documents were destroyed, in violation of the 8 Fourteenth Amendment. Id. at ¶ 4. Plaintiff claims that Defendant, along with other 9 correctional staff in charge of the law library, “repeatedly interfere and deny plaintiff 10 meaningful access to law library services, resources, materials, case laws, citations, copy 11 services, [and] violated privacy of protected confidential-legal-privileged documents” out 12 of “deliberate indifference and retaliation stemming from event described and as adverse 13 action for grievances filed and granted and to prevent the prosecution of court actions.” Id. 14 at ¶ 5. Plaintiff claims that he is being treated differently from other prisoners “by 15 affording less or no equal legal services out of discrimination to plaintiff’s race, color, 16 skin, beliefs” in violation of the First and Fourteenth Amendments and California 17 constitution equivalents. Id. Plaintiff seeks declaratory and injunctive relief, as well as 18 compensatory and punitive damages. Dkt. No. 38 at 5. 19 Plaintiff asserts violations of his rights under the First, Eighth, and Fourteenth 20 Amendments. The Court will consider each of these claims below. 21 1. First Amendment 22 Plaintiff claims that Defendant Tomlinson’s actions of sounding the alarm and 23 having officers “remove and arrest” him in handcuffs from the library “for complaining” 24 violated his First Amendment rights. Plaintiff also claims that the officers later conducted 25 a strip search and issued an RVR. It appears that Plaintiff is attempting to tie Defendant 26 Tomlinson to these later acts by other individuals, but the connection is conclusory and is 1 not supported by any facts indicating that Defendant was present during these events.1 2 Accordingly, the allegations regarding the strip search and RVR are insufficient to 3 establish that Defendant Tomlinson is liable for the related injuries. Leer, 844 F.2d at 633. 4 The First Amendment protects freedom of speech, the press, assembly, and the right 5 to petition the government for a redress of grievances. Firstly, liberally construed, 6 Plaintiff’s allegations are sufficient to state a claim for the violation of his freedom of 7 speech based on Defendant Tomlinson expelling him from the library “for complaining.” 8 See Shaw v. Murphy, 532 U. S. 223, 229 (2001) (impingement on a prisoner’s First 9 Amendment right to free speech is valid only “if it is reasonably related to legitimate 10 penological interests.”) 11 Secondly, it appears that Plaintiff is attempting to state a violation of his right of 12 access to courts based on his removal from the library and the withholding of his legal 13 papers. Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 14 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a 15 claim for any violation of the right of access to the courts, the prisoner must prove that 16 there was an inadequacy in the prison’s legal access program that caused him an actual 17 injury. See Lewis, 518 U.S. at 349-51.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, Case No. 20-cv-07534 BLF (PR) 11 ORDER OF PARTIAL DISMISSAL 12 Plaintiff, AND OF SERVICE; DENYING MOTION FOR RECUSAL; 13 v. DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR 14 NOTICE REGARDING SUCH M. B. ATCHLEY, et al., MOTION; INSTRUCTIONS TO 15 CLERK Defendants. 16 (Docket No. 39) 17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983, against defendants at Salinas Valley State Prison (“SVSP”). The Court 20 dismissed the original, first, and second amended complaints with leave to amend to 21 correct various deficiencies. Dkt. Nos. 14, 21, 36. The second amended complaint 22 (“SAC”) was dismissed because it violated Rules 18(a) and 20(a) of the Federal Rules of 23 Civil Procedure, i.e., improperly joined unrelated claims against unrelated parties. Dkt. 24 No. 36 at 3-4. The Court also found that the SAC contained insufficient allegations to 25 state a claim against each named defendant. Id. at 4. Plaintiff was granted one final 26 opportunity to file a third amended complaint (“TAC”) to correct the deficiencies. Id. 27 Plaintiff’s TAC is before the Court for an initial review. Dkt. No. 38. 1 DISCUSSION 2 A. 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 governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any 5 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 6 upon which relief may be granted or seek monetary relief from a defendant who is immune 7 from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 8 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 10 elements: (1) that a right secured by the Constitution or laws of the United States was 11 violated, and (2) that the alleged violation was committed by a person acting under the 12 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 13 Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the 14 plaintiff can show that the defendant’s actions both actually and proximately caused the 15 deprivation of a federally protected right. Lemire v. Caifornia Dep’t of Corrections & 16 Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 17 (9th Cir. 1988). A person deprives another of a constitutional right within the meaning of 18 § 1983 if he does an affirmative act, participates in another’s affirmative act or omits to 19 perform an act which he is legally required to do, that causes the deprivation of which the 20 plaintiff complains. Id. at 633. 21 B. Plaintiff’s Claims 22 Plaintiff names one defendant in the TAC: S. Tomlinson, senior/supervising law 23 library at SVSP. Dkt. No. 38 at 2. Plaintiff claims that on July 21, 2020, he gave 24 Defendant Tomlinson his only original habeas corpus petition with exhibits to be copied to 25 be sent to the court. Id. at ¶ 1. Plaintiff claims Defendant read his confidential legal 26 1 Plaintiff’s right to due process under the Fourteenth Amendment. Id. at ¶ 2. When 2 Plaintiff complained, Defendant sounded the alarm and had correctional officers remove 3 Plaintiff from the library in handcuffs, which caused cuts, pain, and bruising. Id. at ¶ 3. 4 The officers later forced Plaintiff to strip in the holding cell in the presence of others and 5 issued him a rules violation report (“RVR”) for the incident. Id. Plaintiff claims these 6 actions violated his rights under the Eighth and First Amendments. Id. Plaintiff filed a 7 grievance which was granted, but his legal documents were destroyed, in violation of the 8 Fourteenth Amendment. Id. at ¶ 4. Plaintiff claims that Defendant, along with other 9 correctional staff in charge of the law library, “repeatedly interfere and deny plaintiff 10 meaningful access to law library services, resources, materials, case laws, citations, copy 11 services, [and] violated privacy of protected confidential-legal-privileged documents” out 12 of “deliberate indifference and retaliation stemming from event described and as adverse 13 action for grievances filed and granted and to prevent the prosecution of court actions.” Id. 14 at ¶ 5. Plaintiff claims that he is being treated differently from other prisoners “by 15 affording less or no equal legal services out of discrimination to plaintiff’s race, color, 16 skin, beliefs” in violation of the First and Fourteenth Amendments and California 17 constitution equivalents. Id. Plaintiff seeks declaratory and injunctive relief, as well as 18 compensatory and punitive damages. Dkt. No. 38 at 5. 19 Plaintiff asserts violations of his rights under the First, Eighth, and Fourteenth 20 Amendments. The Court will consider each of these claims below. 21 1. First Amendment 22 Plaintiff claims that Defendant Tomlinson’s actions of sounding the alarm and 23 having officers “remove and arrest” him in handcuffs from the library “for complaining” 24 violated his First Amendment rights. Plaintiff also claims that the officers later conducted 25 a strip search and issued an RVR. It appears that Plaintiff is attempting to tie Defendant 26 Tomlinson to these later acts by other individuals, but the connection is conclusory and is 1 not supported by any facts indicating that Defendant was present during these events.1 2 Accordingly, the allegations regarding the strip search and RVR are insufficient to 3 establish that Defendant Tomlinson is liable for the related injuries. Leer, 844 F.2d at 633. 4 The First Amendment protects freedom of speech, the press, assembly, and the right 5 to petition the government for a redress of grievances. Firstly, liberally construed, 6 Plaintiff’s allegations are sufficient to state a claim for the violation of his freedom of 7 speech based on Defendant Tomlinson expelling him from the library “for complaining.” 8 See Shaw v. Murphy, 532 U. S. 223, 229 (2001) (impingement on a prisoner’s First 9 Amendment right to free speech is valid only “if it is reasonably related to legitimate 10 penological interests.”) 11 Secondly, it appears that Plaintiff is attempting to state a violation of his right of 12 access to courts based on his removal from the library and the withholding of his legal 13 papers. Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 14 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a 15 claim for any violation of the right of access to the courts, the prisoner must prove that 16 there was an inadequacy in the prison’s legal access program that caused him an actual 17 injury. See Lewis, 518 U.S. at 349-51. To prove an actual injury, the prisoner must show 18 that the inadequacy in the prison’s program hindered his efforts to pursue a non-frivolous 19 claim concerning his conviction or conditions of confinement. See id. at 351, 354-55. 20 Similarly, allegations of destruction or confiscation of legal documents may state a claim 21 for denial of access to the courts. See Morello v. James, 810 F.2d 344, 346-348 (2d Cir. 22 1987). A plaintiff must allege an “actual injury” to court access, however, which consists 23 of some specific “instance in which an inmate was actually denied access to the courts.” 24 Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989). Only if an actual injury is alleged 25 does a plaintiff state a claim for which relief can be granted. See id.; see, e.g., Jenkins v. 26 1 McMickens, 618 F. Supp. 1472, 1474-75 (S.D.N.Y. 1985) (complaint alleging certain 2 documents pertaining to pending trial confiscated and not returned too conclusory to 3 support claim of denial of access to court). 4 Here, Plaintiff’s allegations are insufficient because he does not allege what non- 5 frivolous claim(s) he was pursuing in the state habeas petition, nor does he claim that 6 Defendant’s actions caused him an actual injury. For example, there is no allegation as to 7 how the confiscation of the state habeas petition resulted in Plaintiff missing a deadline. 8 Furthermore, Plaintiff attached copies of the “grievance claims decision response” and 9 “appeal claims decision response” on this matter, which indicate that “original legal 10 documents were returned.” Dkt. No. 38-1 at 15, 17. There is no explanation as to how the 11 temporary withholding of his legal papers resulted in actual injury. 12 Plaintiff was already advised that this claim was insufficient in the Court’s first 13 screening order of the original complaint. Dkt. No. 14 at 3-4. Plaintiff was given specific 14 instructions on how to correct the deficiencies of this claim, i.e., to identify a specific 15 deadline that was missed, the specific case number, the non-frivolous claim he was 16 pursuing, and the actual injury he suffered. Id. at 4. The amended complaint was also 17 inadequately plead, and so the Court again reminded Plaintiff to be mindful of the 18 deficiencies of his original complaint. Dkt. No. 21 at 4. In the TAC, Plaintiff has again 19 pleaded insufficient facts to support an access to the courts claim. The Court finds no 20 good cause for granting another opportunity to amend this claim where the deficiencies 21 remain the same. Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003) (district 22 court’s discretion to deny leave to amend particularly broad where plaintiff has previously 23 filed an amended complaint); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 24 Accordingly, this claim must be dismissed for failure to state a claim. 25 Lastly, Plaintiff claims generally that Defendant on unspecified occasions acted out 26 of “deliberate indifference and retaliation stemming from event described and as adverse 1 See supra at 3. “Within the prison context, a viable claim of First Amendment retaliation 2 entails five basic elements: (1) An assertion that a state actor took some adverse action 3 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 4 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 5 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 6 567-68 (9th Cir. 2005) (footnote omitted). 7 In screening the original complaint, the Court found Plaintiff’s allegations were 8 insufficient to state a retaliation claim. Dkt. No. 14 at 6. Plaintiff was advised of the 9 Rhodes elements for a retaliation claim, and given an opportunity to correct the 10 deficiencies, i.e., that Defendant acted at a specific time “because of” Plaintiff’s protected, 11 that Defendant’s actions chilled the exercise of this First Amendment rights, and the action 12 did not reasonably advance a legitimate correctional goal. Id. Here, Plaintiff’s allegation 13 of retaliation is again insufficient because it is vague and fails to establish that Defendant 14 acted with retaliatory animus when he had Plaintiff removed from the library on June 21, 15 2020. The Court finds no good cause for granting another opportunity to amend this claim 16 where the deficiencies remain the same from the original complaint. Wagh, 363 F.3d at 17 830; Ferdik, 963 F.2d at 1261. Accordingly, this claim must be dismissed for failure to 18 state a claim. 19 2. Eighth Amendment 20 Plaintiff claims that his Eighth Amendment rights were violated when he was 21 removed from the library in painful handcuffs, and by the subsequent strip search and 22 RVR. It appears that Plaintiff is attempting to tie Defendant Tomlinson to the later acts 23 (the search and RVR), but the connection is conclusory and is not supported by any facts 24 indicating that Defendant was present during these events or even aware of their 25 occurrence. Accordingly, the allegations regarding the strip search and RVR are 26 insufficient to establish that Defendant Tomlinson is liable for the related injuries. See 1 With regard to the allegation that Defendant “had correctional officers remove and 2 arrest plaintiff in handcuffs to cause cuts pain[,] bruising[,] and suffering,” Plaintiff 3 implies that Defendant Tomlinson was in a supervisory position at the time and that 4 officers applied excessive force under his direction. Whenever prison officials stand 5 accused of using excessive force in violation of the Eighth Amendment, the core judicial 6 inquiry is whether force was applied in a good-faith effort to maintain or restore discipline, 7 or maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 8 (1992). A supervisor may be liable under section 1983 upon a showing of (1) personal 9 involvement in the constitutional deprivation or (2) a sufficient causal connection between 10 the supervisor’s wrongful conduct and the constitutional violation. Henry A. v. Willden, 11 678 F.3d 991, 1003-04 (9th Cir. 2012). Liberally construed, Plaintiff states a cognizable 12 supervisor liability claim against Defendant based on the allegation that excessive force 13 was applied by subordinates at his direction. 14 3. Fourteenth Amendment 15 Plaintiff claims Defendant read his confidential legal documents and kept the 16 originals and copies without a written explanation, violating his right to due process under 17 the Fourteenth Amendment. The attached grievance papers indicate that the grievance was 18 granted at the appeal level, which found that “the record fails to establish by a 19 preponderance of the evidence available that all applicable policies were followed.” Dkt. 20 No. 38-1 at 15. Accordingly, the Court finds Plaintiff states a cognizable due process 21 claim against Defendant Tomlinson for the violation of his procedural due process rights. 22 C. Motion to Disqualify 23 Plaintiff has filed a “motion for order to disqualify district court judge pursuant [to] 24 Title 28 U.S.C. §§ 144 and 455,” which the Court construes as a motion for recusal. Dkt. 25 No. 39. The Court denied a previous motion earlier in this action. See Dkt. No. 14. 26 Plaintiff asserts that the Undersigned has a “personal bias and prejudice” against 1 plaintiff cannot have a fair and impartial trial and hearing before this judge.” Dkt. No. 39 2 at ¶ 2. In an attached affidavit, Plaintiff alleges that the Undersigned has “indicated a 3 personal bias and prejudice against [him] out of invidious retaliatory and discriminatory 4 animus arising from [his] poverty; imprisonment; and race because [he is] a distinct class 5 made obvious by [his] name, supported by [the Undersigned] making improper remarks 6 and insensitive comments about [him] in response to [his] civil complaint(s), also showing 7 an impartiality in judgment.” Dkt. No. 39-1 at ¶ 3. Plaintiff claims that the Undersigned 8 “deliberately and repeatedly” denied his requests for appointment of counsel “upon having 9 advance evidence and knowledge of extraordinary circumstances that are exceptional 10 reasons restricting [his] ability from commencing and effectively litigating [his] case in pro 11 se….” Id. at ¶ 7. Plaintiff claims the Undersigned made him “compromise [his] integrity 12 by forcing [him] to amend [his] complaint multiple times intentionally as punitive 13 retaliatory tactics due to conflict of interest….” Id. at ¶ 8. He also alleges that the 14 Undersigned made “improper remarks and called [him] a prolific filer” and that such 15 comments are sufficient facts showing impartiality and indicating bias. Id. at ¶ 10. 16 Plaintiff also claims that there have been delays and dismissals for the purpose of 17 burdening and halting his response, and that he has had financial burden, loss, and 18 hardship that resulted in gain and unjust enrichment for the Court by “theft by deception, 19 felony, misappropriation of funds, dishonest services thru scheme or artifice to defraud 20 [him] and to obstruct justice.” Id. at ¶ 11. Lastly, Plaintiff claims that the Undersigned 21 “deliberately and repeatedly rejected and excluded evidence” which “supports a square 22 conflict with judge, prejudicial error and planned subversion of justice to infringe on [his] 23 constitutional rights.” Id. at ¶ 14. 24 Motions to recuse a district court judge fall under two statutes, 28 U.S.C. § 144 and 25 28 U.S.C. § 455. The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. 26 § 455 is the same: Whether a reasonable person with knowledge of all the facts would 1 McTiernan, 695 F.3d 882, 891 (9th Cir. 2012); Yagman v. Republic Ins., 987 F.2d 622, 2 626 (9th Cir. 1993) (citation omitted). Sections 144 and 455 ask whether a reasonable 3 person perceives a significant risk that the judge will resolve the case on a basis other than 4 the merits. Clemens v. United States Dist. Ct. for the Cent. Dist. of Cal., 428 F.3d 1175, 5 1178 (9th Cir. 2005). The reasonable person in this context means a well-informed, 6 thoughtful observer, as opposed to a hypersensitive or unduly suspicious person. Id. 7 As a federal judge is presumed to be impartial, a substantial burden is imposed on the party 8 claiming bias or prejudice to show that this is not the case. See United States v. Zagari, 9 419 F. Supp. 494, 501 (N.D. Cal. 1976). Here, Plaintiff’s assertions regarding personal 10 bias, prejudice, and financial gain are simply conclusory. The Court does not have nor has 11 ever expressed any “discriminatory animus” against Plaintiff based on his poverty, 12 imprisonment, or race, and no improper remarks have ever been made showing lack of 13 impartiality. Nor has there been any unjust enrichment or financial gain by the Court. 14 Rather, the decisions by this Court to deny a temporary restraining order, appointment of 15 counsel, grant leave to amend several times, and dismiss matters. See, e.g., Dkt. Nos. 10, 16 14, 21, 36, 37. Furthermore, Plaintiff has been granted generous extensions of time to file 17 amended complaints. Dkt. Nos. 17, 19, 27. Accordingly, Plaintiff’s conclusory assertions 18 are not sufficient to overcome the presumption that this Court has been fair and impartial 19 in this action. Plaintiff may appeal the decision to the Ninth Circuit, but otherwise has no 20 basis for moving to recuse the Court from this matter. The motion for disqualification is 21 DENIED. Dkt. No. 39. 22 23 CONCLUSION 24 For the foregoing reasons, the Court orders as follows: 25 1. Plaintiff’s motion for recusal is DENIED. Dkt. No. 39. 26 2. The following claims are DISMISSED with prejudice for failure to state a 1 strip search and RVR. 2 3. This action shall proceed based on the following cognizable claims against 3 Defendant Tomlinson: (1) First Amendment freedom of speech claim; (2) excessive force 4 claim based on supervisor liability; and (3) due process claim for the withholding of legal 5 papers. 6 4. The following defendant shall be served at SVSP: 7 a. S. Tomlinson, Senior Library Supervisor 8 Service on the listed defendant(s) shall proceed under the California Department of 9 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 10 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 11 on CDCR via email the following documents: the operative complaint and any attachments 12 thereto, Dkt. No. 8, this order of service, and a CDCR Report of E-Service Waiver form. 13 The clerk also shall serve a copy of this order on the plaintiff. 14 No later than 40 days after service of this order via email on CDCR, CDCR shall 15 provide the court a completed CDCR Report of E-Service Waiver advising the court which 16 defendant(s) listed in this order will be waiving service of process without the need for 17 service by the United States Marshal Service (USMS) and which defendant(s) decline to 18 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 19 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 20 days, shall file with the court a waiver of service of process for the defendant(s) who are 21 waiving service. 22 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 23 each defendant who has not waived service according to the CDCR Report of E-Service 24 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 25 forms and copies of this order, the summons and the operative complaint for service upon 26 each defendant who has not waived service. The clerk also shall provide to the USMS a 1 5. No later than thirty-five (35) days from the date the CDCR Report of E- 2 Service Waiver is filed, Defendant shall file an opposition to Plaintiff’s motion for 3 preliminary injunction and supplemental thereto. Dkt. Nos. 6, 9. Plaintiff’s reply shall 4 be filed no later than fourteen (14) days after Defendant’s opposition is filed. 5 6. In the same time in which to file an opposition to Plaintiff’s preliminary 6 injunction motion, Defendant may file a motion to dismiss under the Federal Rules of Civil 7 Procedure. 8 a. Plaintiff’s opposition to Defendant’s motion to dismiss shall be filed 9 with the Court and served on Defendants no later than twenty-eight (28) days from the 10 date Defendants’ motion is filed. 11 b. Defendants shall file a reply brief no later than fourteen (14) days 12 after Plaintiff’s opposition is filed. 13 7. If no motion to dismiss is filed, no later than ninety-one (91) days from the 14 date this order is filed, Defendants shall file a motion for summary judgment with respect 15 to the claims in the complaint found to be cognizable above. 16 a. Any motion for summary judgment shall be supported by adequate 17 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 18 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 19 qualified immunity found, if material facts are in dispute. If any Defendant is of the 20 opinion that this case cannot be resolved by summary judgment, he shall so inform the 21 Court prior to the date the summary judgment motion is due. 22 b. In the event Defendants file a motion for summary judgment, the 23 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 24 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 25 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 26 8. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 1 motion is filed. 2 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 3 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 4 must come forward with evidence showing triable issues of material fact on every essential 5 element of his claim). Plaintiff is cautioned that failure to file an opposition to 6 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 7 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 8 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 9 F.3d 651, 653 (9th Cir. 1994). 10 9. Defendants shall file a reply brief no later than fourteen (14) days after 11 Plaintiff’s opposition is filed. 12 10. The motion shall be deemed submitted as of the date the reply brief is due. 13 No hearing will be held on the motion unless the Court so orders at a later date. 14 11. All communications by the Plaintiff with the Court must be served on 15 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 16 copy of the document to Defendants or Defendants’ counsel. 17 12. Discovery may be taken in accordance with the Federal Rules of Civil 18 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 19 Rule 16-1 is required before the parties may conduct discovery. 20 13. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 21 court informed of any change of address and must comply with the court’s orders in a 22 timely fashion. Failure to do so may result in the dismissal of this action for failure to 23 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 24 14. Extensions of time must be filed no later than the deadline sought to be 25 extended and must be accompanied by a showing of good cause. 26 This order terminates Docket No. 39. 1 IT IS SO ORDERED. 2 || Dated: _ November 8, 2022 _ jh oh Low hana) BETH LABSON FREEMAN 3 United States District Judge 4 5 6 7 8 9 10 11 12
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Oo Z 18 19 20 21 22 23 24 Order of Service; Deny Recusal 25 PRO-SE\BLFICR 20\07534Saddozai_sveSerecusal 26 27