Hollis v. Herrick et al

Filing 4

ORDER OF SERVICE Signed by Judge Thelton E. Henderson on 04/06/2009. (Attachments: #(1) Certificate of Service). (rbe, COURT STAFF) (Filed on 4/7/2009)

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1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I Plaintiff Marvin Hollis, a prisoner currently incarcerated at High Desert State Prison ("H.D.S.P.") in Susanville, California, filed this pro se civil rights Complaint under 42 U.S.C. § 1983 alleging that Salinas Valley State Prison ("S.V.S.P.") Licensed Psychiatric Technician Debra Herrick violated his First Amendment rights while he was incarcerated at that facility by falsely accusing him of a rules violation in retaliation for his use of the inmate administrative grievance system. In addition to Herrick, v. DEBRA HERRICK, L.P.T., et. al., Defendant(s). / MARVIN G. HOLLIS, Plaintiff, ORDER OF SERVICE No. C 08-3154 TEH (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Plaintiff names various officials at S.V.S.P. as Defendants, including Correctional Officer D. Schlitz and Correctional 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lieutenant T. Selby, whom Plaintiff alleges assisted Herrick in her efforts to retaliate against him. declaratory relief. Plaintiff seeks damages and II Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pleadings filed by pro se Balistreri v. litigants, however, must be liberally construed. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). III Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. Cir. 2005). Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th The right of access to the courts extends to the exercise of established prison grievance procedures, Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), such that a prisoner may not be retaliated against for using such procedures. Rhodes, 408 F.3d at 567; Bruce v. Ylst, 351 F3d 1283, 1288 (9th Cir. 2003). Here, Plaintiff alleges that on April 16, 2007, S.V.S.P. Licensed Psychiatric Technician Debra Herrick filed a false rules violation report in retaliation against him for his use of the inmate administrative grievance system. According to Plaintiff, Herrick filed the rules violation report because Plaintiff "informed [] Herrick that he was going to file a complaint against her for her unprofessionalism towards [him] and neglect of responsibility and duties." Doc. # 1 at 3. Plaintiff filed a complaint against Herrick on April 18, 2007, two days after she filed the allegedly false rules violation report. Id. Plaintiff further alleges that Correctional Officer D. Schlitz and Correctional Lieutenant T. Selby assisted Herrick in her acts of retaliation against Plaintiff. # 1 at 4-5. Liberally construed, Plaintiff's allegations appear to state a cognizable retaliation claim under § 1983 and Defendants S.V.S.P. Licensed Psychiatric Technician Debra Herrick, Correctional Officer D. Schlitz, and Correctional Lieutenant T. Selby, will be served. See Rhodes, 408 F.3d at 567-68. Doc. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV For the foregoing reasons and for good cause shown: 1. The Clerk shall issue summons and the United States Marshal shall serve, without prepayment of fees, copies of the Complaint in this matter, all attachments thereto, and copies of this Order on S.V.S.P. Licensed Psychiatric Technician Debra Herrick, Correctional Officer D. Schlitz, and Correctional Lieutenant T. Selby. DISMISSED. Plaintiff. 2. In order to expedite the resolution of this case, the All other parties named as Defendants are The Clerk also shall serve a copy of this Order on Court orders as follows: a. No later than 90 days from the date of this Order, Defendant shall file a Motion for Summary Judgment or other dispositive motion. A Motion for Summary Judgment shall be supported by adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56, and shall include as exhibits all records and incident reports stemming from the events at issue. If Defendant is of the opinion that this case cannot be resolved by summary judgment or other dispositive motion, he shall so inform the Court prior to the date his motion is due. All papers filed with the Court shall be served promptly on Plaintiff. b. Plaintiff's Opposition to the dispositive motion shall be filed with the Court and served upon Defendant no later than 30 days after Defendant serves Plaintiff with the motion. c. Plaintiff is advised that a Motion for Summary 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in Generally, summary order to oppose a Motion for Summary Judgment. judgment must be granted when there is no genuine issue of material fact - that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your Complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in Defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App A). Plaintiff also is advised that a Motion to Dismiss for failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without prejudice. You must "develop a record" and present it in your Opposition in order to dispute any "factual record" presented by the Defendant in his Motion to Dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (9th Cir. 2003). d. Defendant shall file a Reply Brief within 15 days of the date on which Plaintiff serves him with the Opposition. e. The motion shall be deemed submitted as of the No hearing will be held on the motion date the Reply Brief is due. unless the Court so orders at a later date. 3. Discovery may be taken in accordance with the Federal No further court order is required before Rules of Civil Procedure. the parties may conduct discovery. 4. All communications by Plaintiff with the Court must be served on Defendant, or Defendant's counsel once counsel has been designated, by mailing a true copy of the document to Defendant or Defendant's counsel. 5. case. It is Plaintiff's responsibility to prosecute this Plaintiff must keep the Court and all parties informed of any change of address and must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. DATED 04/06/09 THELTON E. HENDERSON United States District Judge G:\PRO-SE\TEH\CR.08\Hollis-08-3154-order of service.wpd 6

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