1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BARRY DEWAYNE WOODS, Case No. 22-cv-05104-JD
8 Plaintiff, ORDER OF SERVICE v. 9
10 D. HANSON, et al., Defendants. 11
12 13 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The 14 amended complaint was dismissed with leave to amend, and plaintiff filed a second amended 15 complaint. 16 DISCUSSION 17 STANDARD OF REVIEW 18 Federal courts engage in a preliminary screening of cases in which prisoners seek redress 19 from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). In this review, the Court will identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 27 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 1 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 2 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 3 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 4 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 5 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 6 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 7 should assume their veracity and then determine whether they plausibly give rise to an entitlement 8 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by 10 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 11 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 12 LEGAL CLAIMS 13 Plaintiff alleges that he was subject to retaliation by prison officials. “Within the prison 14 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion 15 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s 16 protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 17 rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 18 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 19 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under § 1983 for retaliation must 20 allege that he was retaliated against for exercising his constitutional rights and that the retaliatory 21 action did not advance legitimate penological goals, such as preserving institutional order and 22 discipline). The prisoner must show that the type of activity he was engaged in was 23 constitutionally protected, that the protected conduct was a substantial or motivating factor for the 24 alleged retaliatory action, and that the retaliatory action advanced no legitimate penological 25 interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring retaliatory motive from 26 circumstantial evidence). 27 Plaintiff’s original and amended complaints were dismissed with leave to amend because 1 years. The second amended complaint has addressed the deficiencies noted by the Court. Plaintiff 2 states that he filed an inmate appeal against a non-defendant and defendant Hanson. Hanson, a 3 property officer, approached him and threatened him in response to the appeal. Later, on June 4, 4 2020, plaintiff received a package with open items and asked Hanson to contact the vendor 5 regarding the open items. Hanson refused because plaintiff caused problems with his inmate 6 appeals. 7 Plaintiff filed an appeal regarding Hanson’s actions and was approached by defendant Bell 8 who stated that he should withdraw his appeals because he was upsetting staff. When plaintiff 9 refused, Bell stated that plaintiff’s time would go smoother if he stopped filings appeals. 10 Plaintiff continued to file appeals and Hanson approached him and stated that if he did not 11 stop filing appeals, Hanson would “take this to another level.” Dkt. No. 22 at 5. Later, Hanson 12 destroyed plaintiff’s personal property. 13 In December 2020, plaintiff submitted documents to defendant Xiouong, to have money 14 deducted from his inmate trust account and sent to his daughter. On December 14, 2020, 15 defendants Utley and Welch asked plaintiff if he had a parole hearing because he would be found 16 unsuitable for parole due to attempting to send money to another inmate. Plaintiff responded that 17 he was sending money to his daughter, not another inmate. Utley and Welch stated plaintiff could 18 receive a Rules Violation Report for his actions but instead they would just place a notice in his 19 file. Welch then stated that plaintiff should drop his appeals, or they would take further 20 disciplinary action. 21 In December 2021, plaintiff received the wrong item in the mail from a vendor. Defendant 22 Hanson refused to do her assigned job and help plaintiff rectify the situation due to his filing of 23 appeals. Plaintiff filed an appeal regarding this incident and in response, Hanson stole the appeal 24 to cover up her and another employee’s misconduct. These allegations of retaliation are sufficient 25 to proceed against Hanson, Welch, Utley and Bell. Plaintiff has failed to present sufficient 26 allegations against Xiouong to state a claim. 27 1 CONCLUSION 2 1. The Court orders that the follow defendants be served electronically at Pelican Bay 3 State Prison: Correctional Officer D. Hanson, Investigate Services Unit (“ISU”) Correctional 4 Officer F. Welch, ISU Sergeant Utley and Chief Deputy Warden R. Bell. Xiouong and all other 5 defendants are dismissed with prejudice from this action. 6 Service on the listed defendant will be effected via the California Department of 7 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners 8 in CDCR custody. In accordance with the program, the Clerk is directed to serve on CDCR via 9 email the following documents: the operative complaint, this order of service, a CDCR Report of 10 E-Service Waiver form and a summons. The Clerk is also requested to serve a copy of this order 11 on the plaintiff.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BARRY DEWAYNE WOODS, Case No. 22-cv-05104-JD
8 Plaintiff, ORDER OF SERVICE v. 9
10 D. HANSON, et al., Defendants. 11
12 13 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The 14 amended complaint was dismissed with leave to amend, and plaintiff filed a second amended 15 complaint. 16 DISCUSSION 17 STANDARD OF REVIEW 18 Federal courts engage in a preliminary screening of cases in which prisoners seek redress 19 from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). In this review, the Court will identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 27 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 1 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 2 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 3 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 4 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 5 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 6 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 7 should assume their veracity and then determine whether they plausibly give rise to an entitlement 8 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by 10 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 11 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 12 LEGAL CLAIMS 13 Plaintiff alleges that he was subject to retaliation by prison officials. “Within the prison 14 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion 15 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s 16 protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 17 rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 18 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 19 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under § 1983 for retaliation must 20 allege that he was retaliated against for exercising his constitutional rights and that the retaliatory 21 action did not advance legitimate penological goals, such as preserving institutional order and 22 discipline). The prisoner must show that the type of activity he was engaged in was 23 constitutionally protected, that the protected conduct was a substantial or motivating factor for the 24 alleged retaliatory action, and that the retaliatory action advanced no legitimate penological 25 interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring retaliatory motive from 26 circumstantial evidence). 27 Plaintiff’s original and amended complaints were dismissed with leave to amend because 1 years. The second amended complaint has addressed the deficiencies noted by the Court. Plaintiff 2 states that he filed an inmate appeal against a non-defendant and defendant Hanson. Hanson, a 3 property officer, approached him and threatened him in response to the appeal. Later, on June 4, 4 2020, plaintiff received a package with open items and asked Hanson to contact the vendor 5 regarding the open items. Hanson refused because plaintiff caused problems with his inmate 6 appeals. 7 Plaintiff filed an appeal regarding Hanson’s actions and was approached by defendant Bell 8 who stated that he should withdraw his appeals because he was upsetting staff. When plaintiff 9 refused, Bell stated that plaintiff’s time would go smoother if he stopped filings appeals. 10 Plaintiff continued to file appeals and Hanson approached him and stated that if he did not 11 stop filing appeals, Hanson would “take this to another level.” Dkt. No. 22 at 5. Later, Hanson 12 destroyed plaintiff’s personal property. 13 In December 2020, plaintiff submitted documents to defendant Xiouong, to have money 14 deducted from his inmate trust account and sent to his daughter. On December 14, 2020, 15 defendants Utley and Welch asked plaintiff if he had a parole hearing because he would be found 16 unsuitable for parole due to attempting to send money to another inmate. Plaintiff responded that 17 he was sending money to his daughter, not another inmate. Utley and Welch stated plaintiff could 18 receive a Rules Violation Report for his actions but instead they would just place a notice in his 19 file. Welch then stated that plaintiff should drop his appeals, or they would take further 20 disciplinary action. 21 In December 2021, plaintiff received the wrong item in the mail from a vendor. Defendant 22 Hanson refused to do her assigned job and help plaintiff rectify the situation due to his filing of 23 appeals. Plaintiff filed an appeal regarding this incident and in response, Hanson stole the appeal 24 to cover up her and another employee’s misconduct. These allegations of retaliation are sufficient 25 to proceed against Hanson, Welch, Utley and Bell. Plaintiff has failed to present sufficient 26 allegations against Xiouong to state a claim. 27 1 CONCLUSION 2 1. The Court orders that the follow defendants be served electronically at Pelican Bay 3 State Prison: Correctional Officer D. Hanson, Investigate Services Unit (“ISU”) Correctional 4 Officer F. Welch, ISU Sergeant Utley and Chief Deputy Warden R. Bell. Xiouong and all other 5 defendants are dismissed with prejudice from this action. 6 Service on the listed defendant will be effected via the California Department of 7 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners 8 in CDCR custody. In accordance with the program, the Clerk is directed to serve on CDCR via 9 email the following documents: the operative complaint, this order of service, a CDCR Report of 10 E-Service Waiver form and a summons. The Clerk is also requested to serve a copy of this order 11 on the plaintiff. 12 No later than 40 days after service of this order via email on CDCR, CDCR will provide 13 the Court a completed CDCR Report of E-Service Waiver advising the court which defendant 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 declines to waive service or could not be 16 reached. CDCR also will provide a copy of the CDCR Report of E-Service Waiver to the 17 California Attorney General’s Office which, within 21 days, will file with the Court a waiver of 18 service of process for the defendant if he is waiving service. 19 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk is requested to prepare 20 for each defendant who has not waived service according to the CDCR Report of E-Service 21 Waiver a USM-205 Form. The Clerk will provide to the USMS the completed USM-205 forms 22 and copies of this order, the summons and the operative complaint for service upon each defendant 23 who has not waived service. The Clerk will also provide to the USMS a copy of the CDCR 24 Report of E-Service Waiver. 25 2. To expedite the resolution of this case, the Court orders: 26 a. No later than sixty days from the date of service, defendant will file a 27 motion for summary judgment or other dispositive motion. The motion will be supported by 1 Procedure 56, and will include as exhibits all records and incident reports stemming from the 2 events at issue. If defendant is of the opinion that this case cannot be resolved by summary 3 judgment, he will so inform the Court prior to the date his summary judgment motion is due. All 4 papers filed with the Court will be promptly served on the plaintiff. 5 b. At the time the dispositive motion is served, defendant will also serve, on a 6 separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953- 7 954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 8 See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be 9 given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed, 10 not earlier); Rand at 960 (separate paper requirement). 11 c. Plaintiff’s opposition to the dispositive motion, if any, will be filed with the 12 Court and served upon defendant no later than thirty days from the date the motion was served 13 upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is 14 provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), 15 and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 16 If defendant files a motion for summary judgment claiming that plaintiff failed to exhaust 17 his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take 18 note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided 19 to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 20 d. If defendant wishes to file a reply brief, they will do so no later than fifteen 21 days after the opposition is served upon him. 22 e. The motion will be deemed submitted as of the date the reply brief is due. 23 No hearing will be held on the motion unless the Court so orders at a later date. 24 3. All communications by plaintiff with the Court must be served on defendant, or 25 defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 26 defendant or defendant’s counsel. 27 4. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 1 parties may conduct discovery. 2 5. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court 3 informed of any change of address by filing a separate paper with the clerk headed “Notice of 4 || Change of Address.” He also must comply with the Court’s orders in a timely fashion. Failure to 5 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 6 Civil Procedure 41(b). 7 IT IS SO ORDERED. 8 || Dated: 8/25/2023 9 10 JAMES ATO 11 United Si#tes District Judge 12
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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 the 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 NOTICE -- WARNING (EXHAUSTION) 18 If defendants file a motion for summary judgment for failure to exhaust, they are seeking 19 to have your case dismissed. If the motion is granted it will end your case. 20 You have the right to present any evidence you may have which tends to show that you did 21 exhaust your administrative remedies. Such evidence may be in the form of declarations 22 (statements signed under penalty of perjury) or authenticated documents, that is, documents 23 accompanied by a declaration showing where they came from and why they are authentic, or other 24 sworn papers, such as answers to interrogatories or depositions. 25 If defendants file a motion for summary judgment for failure to exhaust and it is granted, 26 your case will be dismissed and there will be no trial.