1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JASON SMITH, 11 Case No. 22-cv-02779 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING v. DEFENDANTS TO FILE 13 DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 JESUS LOPEZ, et al., MOTION; DENYING REQUEST FOR APPOINTMENT OF 15 Defendants. COUNSEL; INSTRUCTIONS TO CLERK 16
17 18 Plaintiff, a state prisoner, filed a civil rights complaint pursuant to 42 U.S.C. § 19 1983, against officers of the Prison Investigative Services Unit (“ISU”) at the Correctional 20 Training Facility (“CTF”), where he is currently confined. Dkt. No. 1. The Court 21 dismissed the complaint with leave to amend. Dkt. No. 3. Plaintiff filed an amended 22 complaint, in which he also requests appointment of counsel. Dkt. No. 8. 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. Plaintiff’s Claims 10 Plaintiff claims that following an “institutional racial raid” on July 20, 2020, he 11 began sending letters to various legal entities requesting an inquiry, investigation, or any 12 other form of assistance for the prisoners who were targeted in the raid. Dkt. No. 8 at ¶ 17. 13 He sent one letter to the Office of Internal Affairs, and another to the Pavone and Fonner 14 Law Firm. Id. On August 17, 2020, Plaintiff received a response to his letter to the Office 15 of Internal Affairs from Warden Craig Koenig. Id. at ¶ 18. The following day, on August 16 18, 2020, Plaintiff submitted an inmate grievance alleging violations of his constitutional 17 rights in connection with the July 20, 2020 raid. Id. at ¶ 19. On September 29, 2020, 18 Plaintiff received correspondence from attorney Benjamin Pavone, which was clearly 19 marked “Legal Mail – Attorney/Client Privilege.” Id. at ¶ 20. However, the mail was 20 marked by the CTF mailroom as “opened in error” with the notation “ISU Staff.” Id. at ¶ 21 21. Plaintiff claims that the mail was opened by Defendant “ISU K9 Mell.” Id. 22 Plaintiff claims that his mail was opened purposefully by ISU C. Mell, and that the 23 mail was opened after prison officials became aware of his letter to the Office of Internal 24 Affairs and the filing of his grievance. Id. at ¶ 22. Plaintiff claims that when Defendant 25 Mell opened his legal mail, “all the name Defendants were present, failed to act and/or 26 intervene; thereby making them acquiescent of a First Amendment violation.” Id. at ¶ 26. 1 the government for redress of grievances and that their actions violated his rights under the 2 First Amendment to free speech. Id. He seeks declaratory and injunctive relief as well as 3 damages. Dkt. No. 8 at 19-21. 4 Liberally construed, Plaintiff’s allegations are sufficient to state claims under the 5 First Amendment for the unauthorized inspection of his legal mail outside of his presence 6 and for retaliation. See Hayes v. Idaho Correctional Center, 849 F.3d 1204, 1211 (9th Cir. 7 2017); O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); see also Rhodes v. 8 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 9 Plaintiff requests appointment of counsel as part of his prayer for relief, asserting 10 that he is a “lay-person and un-skilled at law.” Dkt. No. 8 at 20-21. There is no 11 constitutional right to counsel in a civil case unless an indigent litigant may lose his 12 physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 13 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional 14 right to counsel in § 1983 action), withdrawn in part on other grounds on reh’g en banc, 15 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel to represent an 16 indigent litigant under § 1915 is within “the sound discretion of the trial court and is 17 granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th 18 Cir. 1984). Plaintiff’s grounds for appointment of counsel do not amount to exceptional 19 circumstances. Accordingly, the motion is DENIED. See Agyeman v. Corrections Corp. 20 of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); 21 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 22 1328, 1331 (9th Cir. 1986). 23 24 CONCLUSION 25 For the reasons state above, the Court orders as follows: 26 1. The following defendants shall be served at the Correctional Training 1 a. Lt. J. Lopez, Investigative Services Unit 2 b. Sgt. H. Vera, Investigative Services Unit 3 c. Sgt. J. Peffley, Investigative Services Unit 4 d. Officer Z. Brown, Investigative Services Unit 5 e. Officer S. Mora, Investigative Services Unit 6 f. Officer C. Bravo, Investigative Services Unit 7 g. Officer H. Madsen, Investigative Services Unit 8 h. Officer B. Barron, Investigative Services Unit 9 i. Officer H. Orozco, Investigative Services Unit 10 j. Officer V. Garcia, Investigative Services Unit 11 k. Officer C. Vergara, Investigative Services Unit 12 l. Officer C. Mell, Investigative Services Unit – K9 13 Service on the listed defendant(s) shall proceed under the California Department of 14 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 15 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 16 on CDCR via email the following documents: the operative complaint and any attachments 17 thereto, Dkt. No. 8, this order of service, and a CDCR Report of E-Service Waiver form. 18 The clerk also shall serve a copy of this order on the plaintiff. 19 No later than 40 days after service of this order via email on CDCR, CDCR shall 20 provide the court a completed CDCR Report of E-Service Waiver advising the court which 21 defendant(s) listed in this order will be waiving service of process without the need for 22 service by the United States Marshal Service (USMS) and which defendant(s) decline to 23 waive service or could not be reached.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JASON SMITH, 11 Case No. 22-cv-02779 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING v. DEFENDANTS TO FILE 13 DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 JESUS LOPEZ, et al., MOTION; DENYING REQUEST FOR APPOINTMENT OF 15 Defendants. COUNSEL; INSTRUCTIONS TO CLERK 16
17 18 Plaintiff, a state prisoner, filed a civil rights complaint pursuant to 42 U.S.C. § 19 1983, against officers of the Prison Investigative Services Unit (“ISU”) at the Correctional 20 Training Facility (“CTF”), where he is currently confined. Dkt. No. 1. The Court 21 dismissed the complaint with leave to amend. Dkt. No. 3. Plaintiff filed an amended 22 complaint, in which he also requests appointment of counsel. Dkt. No. 8. 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. Plaintiff’s Claims 10 Plaintiff claims that following an “institutional racial raid” on July 20, 2020, he 11 began sending letters to various legal entities requesting an inquiry, investigation, or any 12 other form of assistance for the prisoners who were targeted in the raid. Dkt. No. 8 at ¶ 17. 13 He sent one letter to the Office of Internal Affairs, and another to the Pavone and Fonner 14 Law Firm. Id. On August 17, 2020, Plaintiff received a response to his letter to the Office 15 of Internal Affairs from Warden Craig Koenig. Id. at ¶ 18. The following day, on August 16 18, 2020, Plaintiff submitted an inmate grievance alleging violations of his constitutional 17 rights in connection with the July 20, 2020 raid. Id. at ¶ 19. On September 29, 2020, 18 Plaintiff received correspondence from attorney Benjamin Pavone, which was clearly 19 marked “Legal Mail – Attorney/Client Privilege.” Id. at ¶ 20. However, the mail was 20 marked by the CTF mailroom as “opened in error” with the notation “ISU Staff.” Id. at ¶ 21 21. Plaintiff claims that the mail was opened by Defendant “ISU K9 Mell.” Id. 22 Plaintiff claims that his mail was opened purposefully by ISU C. Mell, and that the 23 mail was opened after prison officials became aware of his letter to the Office of Internal 24 Affairs and the filing of his grievance. Id. at ¶ 22. Plaintiff claims that when Defendant 25 Mell opened his legal mail, “all the name Defendants were present, failed to act and/or 26 intervene; thereby making them acquiescent of a First Amendment violation.” Id. at ¶ 26. 1 the government for redress of grievances and that their actions violated his rights under the 2 First Amendment to free speech. Id. He seeks declaratory and injunctive relief as well as 3 damages. Dkt. No. 8 at 19-21. 4 Liberally construed, Plaintiff’s allegations are sufficient to state claims under the 5 First Amendment for the unauthorized inspection of his legal mail outside of his presence 6 and for retaliation. See Hayes v. Idaho Correctional Center, 849 F.3d 1204, 1211 (9th Cir. 7 2017); O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); see also Rhodes v. 8 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 9 Plaintiff requests appointment of counsel as part of his prayer for relief, asserting 10 that he is a “lay-person and un-skilled at law.” Dkt. No. 8 at 20-21. There is no 11 constitutional right to counsel in a civil case unless an indigent litigant may lose his 12 physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 13 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional 14 right to counsel in § 1983 action), withdrawn in part on other grounds on reh’g en banc, 15 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel to represent an 16 indigent litigant under § 1915 is within “the sound discretion of the trial court and is 17 granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th 18 Cir. 1984). Plaintiff’s grounds for appointment of counsel do not amount to exceptional 19 circumstances. Accordingly, the motion is DENIED. See Agyeman v. Corrections Corp. 20 of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); 21 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 22 1328, 1331 (9th Cir. 1986). 23 24 CONCLUSION 25 For the reasons state above, the Court orders as follows: 26 1. The following defendants shall be served at the Correctional Training 1 a. Lt. J. Lopez, Investigative Services Unit 2 b. Sgt. H. Vera, Investigative Services Unit 3 c. Sgt. J. Peffley, Investigative Services Unit 4 d. Officer Z. Brown, Investigative Services Unit 5 e. Officer S. Mora, Investigative Services Unit 6 f. Officer C. Bravo, Investigative Services Unit 7 g. Officer H. Madsen, Investigative Services Unit 8 h. Officer B. Barron, Investigative Services Unit 9 i. Officer H. Orozco, Investigative Services Unit 10 j. Officer V. Garcia, Investigative Services Unit 11 k. Officer C. Vergara, Investigative Services Unit 12 l. Officer C. Mell, Investigative Services Unit – K9 13 Service on the listed defendant(s) shall proceed under the California Department of 14 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 15 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 16 on CDCR via email the following documents: the operative complaint and any attachments 17 thereto, Dkt. No. 8, this order of service, and a CDCR Report of E-Service Waiver form. 18 The clerk also shall serve a copy of this order on the plaintiff. 19 No later than 40 days after service of this order via email on CDCR, CDCR shall 20 provide the court a completed CDCR Report of E-Service Waiver advising the court which 21 defendant(s) listed in this order will be waiving service of process without the need for 22 service by the United States Marshal Service (USMS) and which defendant(s) decline to 23 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 24 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 25 days, shall file with the court a waiver of service of process for the defendant(s) who are 26 waiving service. 1 each defendant who has not waived service according to the CDCR Report of E-Service 2 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 3 forms and copies of this order, the summons and the operative complaint for service upon 4 each defendant who has not waived service. The clerk also shall provide to the USMS a 5 copy of the CDCR Report of E-Service Waiver. 6 2. No later than ninety-one (91) days from the date this order is filed, 7 Defendants shall file a motion for summary judgment or other dispositive motion with 8 respect to the claims in the complaint found to be cognizable above. 9 a. Any motion for summary judgment shall be supported by adequate 10 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 11 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 12 qualified immunity found, if material facts are in dispute. If any Defendant is of the 13 opinion that this case cannot be resolved by summary judgment, he shall so inform the 14 Court prior to the date the summary judgment motion is due. 15 b. In the event Defendants file a motion for summary judgment, the 16 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 17 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 18 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 19 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 20 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 21 motion is filed. 22 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 23 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 24 must come forward with evidence showing triable issues of material fact on every essential 25 element of his claim). Plaintiff is cautioned that failure to file an opposition to 26 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 1 || Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 2 || F.3d 651, 653 (9th Cir. 1994). 3 4, Defendants shall file a reply brief no later than fourteen (14) days after 4 || Plaintiff's opposition is filed. 5 5. The motion shall be deemed submitted as of the date the reply brief is due. 6 || No hearing will be held on the motion unless the Court so orders at a later date. 7 6. All communications by the Plaintiff with the Court must be served on 8 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 9 || copy of the document to Defendants or Defendants’ counsel. 10 7. Discovery may be taken in accordance with the Federal Rules of Civil 11 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 2 Rule 16-1 is required before the parties may conduct discovery. E 13 8. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the S 14 || court informed of any change of address and must comply with the court’s orders in a 3 15 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 16 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 5 17 9. Extensions of time must be filed no later than the deadline sought to be 5 18 || extended and must be accompanied by a showing of good cause. 19 IT ISSO ORDERED. 20 || Dated: _ February 23,2023. feiinfhacncen BETH LABSON FREEMAN 71 United States District Judge 22 23 24 25 Order of Svc PRO-SE\BLF\CR.22\02779Smith_sve 26 27