1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JASON SMITH, 11 Case No. 19-03750 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING v. DEFENDANTS TO FILE 13 DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 J. MENDOZA, et al., MOTION; INSTRUCTIONS TO CLERK 15 Defendants. 16 17 18 Plaintiff, a state prisoner at the Correctional Training Facility (“CTF”) in Soledad, 19 filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against CTF 20 personnel. Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a 21 separate order. 22 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff claims Defendants I. Perez conducted a retaliatory cell search on 10 September 24, 2018, for Plaintiff threatening to report him for violating prison policy by 11 watching television for personal use. (Docket No. 1 at 10-11.) Plaintiff claims numerous 12 legal documents were stolen. (Id.) Plaintiff claims that on November 15, 2018, Defendant 13 J. Mendoza had him moved to a cell with broken windows (14 of the 20 windows are 14 missing) in retaliation for Plaintiff filing a grievance against him for mishandling inmates’ 15 mail. (Id. at 12-13.) Plaintiff claims that Defendant Mendoza stated to him: “you 16 complain to[o] much about the program and that he (J. Mendoza) knew about Plaintiff’s 17 CDCR-602 filed against his partner I. Perez about watching television.” (Id. at 12.) 18 Plaintiff claims Defendants Perez and Mendoza’s actions had a chilling effect on his First 19 Amendment rights. (Id. at 11, 13.) Plaintiff claims that he made several requests to have 20 the windows fixed to Defendants R. Glaze, M. Zavala, B. Aguirre, and J. Ibarra over the 21 course of the next several months as he suffered cold and wet weather conditions, but they 22 all refused to act. (Id. at 31-18.) Plaintiff claims Defendant W. Sinkovich, the appeals 23 examiner, “received and was given notice of Plaintiff’s unconstitutional housing, but he 24 refused to have staff… personally inspect Plaintiff’s cell to ascertain the validity of the 25 allegation.” (Id. at 19.) Plaintiff claims that all similarly situated prisoners were afforded 26 a physical inspection of their cells by reviewing staff when allegations of missing windows 1 the Equal Protection Clause. (Id.) 2 Plaintiff claims that Defendants’ actions amounted to retaliation under the First 3 Amendment for their adverse actions against him for exercising his protected rights, cruel 4 and unusual punishment under the Eighth Amendment for subjecting him to inhumane 5 conditions, and discriminatory treatment under the Equal Protection Clause. (Id. at 20-22.) 6 Liberally construed, Plaintiff’s allegations are sufficient to state such cognizable claims. 7 See Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005) (First Amendment retaliation 8 claim); Farmer v. Brennan, 511 U.S. 825 (1994) (Eighth Amendment claim for inhumane 9 conditions); Maynard v. City of San Jose, 37 F.3d 1396 (9th Cir. 1994) (Equal Protection 10 claim). 11 12 CONCLUSION 13 For the reasons state above, the Court orders as follows: 14 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 15 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 16 of the complaint, all attachments thereto, and a copy of this order upon Defendants 17 Correctional Officers I. Perez, J. Mendoza, M. Zavala, B. Aguirre, and Sgt. R. Glaze 18 and Appeals Examiner W. Sinkovich at the Correctional Training Facility (P.O. Box 19 686, Soledad, CA 93960-0686). The Clerk shall also mail a copy of this Order to 20 Plaintiff. 21 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 22 Procedure requires them to cooperate in saving unnecessary costs of service of the 23 summons and the amended complaint. Pursuant to Rule 4, if Defendants, after being 24 notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the 25 summons, fail to do so, they will be required to bear the cost of such service unless good 26 cause shown for their failure to sign and return the waiver form. If service is waived, this 1 except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file 2 an answer before sixty (60) days from the day on which the request for waiver was sent. 3 (This allows a longer time to respond than would be required if formal service of summons 4 is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 5 form that more completely describes the duties of the parties with regard to waiver of 6 service of the summons. If service is waived after the date provided in the Notice but 7 before Defendants have been personally served, the Answer shall be due sixty (60) days 8 from the date on which the request for waiver was sent or twenty (20) days from the date 9 the waiver form is filed, whichever is later. 10 3. No later than ninety-one (91) days from the date this order is filed, 11 Defendants shall file a motion for summary judgment or other dispositive motion with 12 respect to the claims in the amended complaint found to be cognizable above. 13 a. Any motion for summary judgment shall be supported by adequate 14 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 15 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 16 qualified immunity found, if material facts are in dispute. If any Defendant is of the 17 opinion that this case cannot be resolved by summary judgment, he shall so inform the 18 Court prior to the date the summary judgment motion is due. 19 b. In the event Defendants file a motion for summary judgment, the 20 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 21 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 22 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 23 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 24 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 25 motion is filed.
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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. 19-03750 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING v. DEFENDANTS TO FILE 13 DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 J. MENDOZA, et al., MOTION; INSTRUCTIONS TO CLERK 15 Defendants. 16 17 18 Plaintiff, a state prisoner at the Correctional Training Facility (“CTF”) in Soledad, 19 filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against CTF 20 personnel. Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a 21 separate order. 22 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff claims Defendants I. Perez conducted a retaliatory cell search on 10 September 24, 2018, for Plaintiff threatening to report him for violating prison policy by 11 watching television for personal use. (Docket No. 1 at 10-11.) Plaintiff claims numerous 12 legal documents were stolen. (Id.) Plaintiff claims that on November 15, 2018, Defendant 13 J. Mendoza had him moved to a cell with broken windows (14 of the 20 windows are 14 missing) in retaliation for Plaintiff filing a grievance against him for mishandling inmates’ 15 mail. (Id. at 12-13.) Plaintiff claims that Defendant Mendoza stated to him: “you 16 complain to[o] much about the program and that he (J. Mendoza) knew about Plaintiff’s 17 CDCR-602 filed against his partner I. Perez about watching television.” (Id. at 12.) 18 Plaintiff claims Defendants Perez and Mendoza’s actions had a chilling effect on his First 19 Amendment rights. (Id. at 11, 13.) Plaintiff claims that he made several requests to have 20 the windows fixed to Defendants R. Glaze, M. Zavala, B. Aguirre, and J. Ibarra over the 21 course of the next several months as he suffered cold and wet weather conditions, but they 22 all refused to act. (Id. at 31-18.) Plaintiff claims Defendant W. Sinkovich, the appeals 23 examiner, “received and was given notice of Plaintiff’s unconstitutional housing, but he 24 refused to have staff… personally inspect Plaintiff’s cell to ascertain the validity of the 25 allegation.” (Id. at 19.) Plaintiff claims that all similarly situated prisoners were afforded 26 a physical inspection of their cells by reviewing staff when allegations of missing windows 1 the Equal Protection Clause. (Id.) 2 Plaintiff claims that Defendants’ actions amounted to retaliation under the First 3 Amendment for their adverse actions against him for exercising his protected rights, cruel 4 and unusual punishment under the Eighth Amendment for subjecting him to inhumane 5 conditions, and discriminatory treatment under the Equal Protection Clause. (Id. at 20-22.) 6 Liberally construed, Plaintiff’s allegations are sufficient to state such cognizable claims. 7 See Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005) (First Amendment retaliation 8 claim); Farmer v. Brennan, 511 U.S. 825 (1994) (Eighth Amendment claim for inhumane 9 conditions); Maynard v. City of San Jose, 37 F.3d 1396 (9th Cir. 1994) (Equal Protection 10 claim). 11 12 CONCLUSION 13 For the reasons state above, the Court orders as follows: 14 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 15 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 16 of the complaint, all attachments thereto, and a copy of this order upon Defendants 17 Correctional Officers I. Perez, J. Mendoza, M. Zavala, B. Aguirre, and Sgt. R. Glaze 18 and Appeals Examiner W. Sinkovich at the Correctional Training Facility (P.O. Box 19 686, Soledad, CA 93960-0686). The Clerk shall also mail a copy of this Order to 20 Plaintiff. 21 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 22 Procedure requires them to cooperate in saving unnecessary costs of service of the 23 summons and the amended complaint. Pursuant to Rule 4, if Defendants, after being 24 notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the 25 summons, fail to do so, they will be required to bear the cost of such service unless good 26 cause shown for their failure to sign and return the waiver form. If service is waived, this 1 except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file 2 an answer before sixty (60) days from the day on which the request for waiver was sent. 3 (This allows a longer time to respond than would be required if formal service of summons 4 is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 5 form that more completely describes the duties of the parties with regard to waiver of 6 service of the summons. If service is waived after the date provided in the Notice but 7 before Defendants have been personally served, the Answer shall be due sixty (60) days 8 from the date on which the request for waiver was sent or twenty (20) days from the date 9 the waiver form is filed, whichever is later. 10 3. No later than ninety-one (91) days from the date this order is filed, 11 Defendants shall file a motion for summary judgment or other dispositive motion with 12 respect to the claims in the amended complaint found to be cognizable above. 13 a. Any motion for summary judgment shall be supported by adequate 14 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 15 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 16 qualified immunity found, if material facts are in dispute. If any Defendant is of the 17 opinion that this case cannot be resolved by summary judgment, he shall so inform the 18 Court prior to the date the summary judgment motion is due. 19 b. In the event Defendants file a motion for summary judgment, the 20 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 21 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 22 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 23 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 24 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 25 motion is filed. 26 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 1 |} must come forward with evidence showing triable issues of material fact on every essential 2 || element of his claim). Plaintiff is cautioned that failure to file an opposition to 3 || Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 4 || the granting of the motion, and granting of judgment against Plaintiff without a trial. See 5 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 6 || F.3d 651, 653 (9th Cir. 1994). 7 5. Defendants shall file a reply brief no later than fourteen (14) days after 8 || Plaintiffs opposition is filed. 9 6. The motion shall be deemed submitted as of the date the reply brief is due. 10 || No hearing will be held on the motion unless the Court so orders at a later date. 11 7. All communications by the Plaintiff with the Court must be served on 22 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 13 || copy of the document to Defendants or Defendants’ counsel. S 14 8. Discovery may be taken in accordance with the Federal Rules of Civil 3 15 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local A 16 || Rule 16-1 is required before the parties may conduct discovery. 3 17 9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 18 || court informed of any change of address and must comply with the court’s orders in a 19 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 20 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 21 10. Extensions of time must be filed no later than the deadline sought to be 22 || extended and must be accompanied by a showing of good cause. 23 IT ISSO ORDERED. 24 Dated: _November 21, 2019_ f bok ( fy omer) 35 BETH LABSON FREEMAN United States District Judge 26 PROSEBLEICR. 19\03750Smith_sve 27