Harvey v. Scott et al
Filing
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ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK. Signed by Judge Richard Seeborg on 12/29/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 12/29/2011)
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*E-Filed 12/29/11*
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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SAN FRANCISCO DIVISION
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No. C 11-4332 RS (PR)
JAMES EARLY HARVEY,
ORDER OF SERVICE;
Plaintiff,
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v.
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DIRECTING DEFENDANTS TO FILE
DISPOSITIVE MOTION OR NOTICE
REGARDING SUCH MOTION;
J. HINDT, et al.,
Defendants.
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INSTRUCTIONS TO CLERK
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INTRODUCTION
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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state
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prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a).
DISCUSSION
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A.
Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity.
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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and
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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may
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No. C 11-4332 RS (PR)
ORDER OF SERVICE
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be granted or seek monetary relief from a defendant who is immune from such relief. See id.
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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica
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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
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plausibility when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting
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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions
United States District Court
For the Northern District of California
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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from
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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:
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(1) that a right secured by the Constitution or laws of the United States was violated, and
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(2) that the alleged violation was committed by a person acting under the color of state law.
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See West v. Atkins, 487 U.S. 42, 48 (1988).
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B.
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Legal Claims
Plaintiff alleges that (1) J. Hindt, a correctional officer at Pelican Bay State Prison
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violated his constitutional rights by interfering with plaintiff’s receipt of his confidential
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legal mail; and (2) T.L. Scott, Sergeant Hallock, and Lieutenant Thompson, all correctional
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officers at Pelican Bay, violated his Eighth Amendment rights by placing him in a
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disciplinary cell for refusing to submit to a strip search. Liberally construed, Claim 1 is
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cognizable under § 1983. Claim 2 is DISMISSED without prejudice because it is unrelated
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to the first claim. See Fed. R. Civ. P. 15 & 20. If plaintiff seeks relief on the second claim,
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he may file a separate civil rights action. T.L. Scott, Sergeant Hallock, and Lieutenant
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Thompson are hereby TERMINATED as defendants.
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No. C 11-4332 RS (PR)
ORDER OF SERVICE
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CONCLUSION
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For the foregoing reasons, the Court orders as follows:
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1.
The Clerk of the Court shall issue summons and the United States
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Marshal shall serve, without prepayment of fees, a copy of the complaint in this matter, all
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attachments thereto, and a copy of this order upon J. Hindt, a correctional officer at Pelican
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Bay State Prison. The Clerk shall also mail courtesy copies of the complaint and this order
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to the California Attorney General’s Office.
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United States District Court
For the Northern District of California
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2.
No later than ninety (90) days from the date of this order, defendant shall file a
motion for summary judgment or other dispositive motion with respect to the claims in the
complaint found to be cognizable above.
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a.
If defendant elects to file a motion to dismiss on the grounds plaintiff
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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),
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defendant shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune,
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315 F.3d 1108, 1119–20 (9th Cir. 2003), cert. denied Alameida v. Terhune, 540 U.S. 810
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(2003).
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b.
Any motion for summary judgment shall be supported by adequate
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factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of
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Civil Procedure. Defendant is advised that summary judgment cannot be granted, nor
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qualified immunity found, if material facts are in dispute. If any defendant is of the opinion
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that this case cannot be resolved by summary judgment, he shall so inform the Court prior to
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the date the summary judgment motion is due.
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3.
Plaintiff’s opposition to the dispositive motion shall be filed with the Court and
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served on defendant no later than forty-five (45) days from the date defendant’s motion is
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filed.
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a.
In the event the defendant files an unenumerated motion to dismiss
under Rule 12(b), plaintiff is hereby cautioned as follows:
The defendants have made a motion to dismiss pursuant to Rule 12(b) of the
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No. C 11-4332 RS (PR)
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Federal Rules of Civil Procedure, on the ground you have not exhausted your administrative
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remedies. The motion will, if granted, result in the dismissal of your case. When a party you
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are suing makes a motion to dismiss for failure to exhaust, and that motion is properly
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supported by declarations (or other sworn testimony) and/or documents, you may not simply
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rely on what your complaint says. Instead, you must set out specific facts in declarations,
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depositions, answers to interrogatories, or documents, that contradict the facts shown in the
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defendant’s declarations and documents and show that you have in fact exhausted your
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claims. If you do not submit your own evidence in opposition, the motion to dismiss, if
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appropriate, may be granted and the case dismissed.
United States District Court
For the Northern District of California
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b.
In the event defendant files a motion for summary judgment,
the Ninth Circuit has held that the following notice should be given to plaintiffs:
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The defendants have made a motion for summary judgment by which they
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seek to have your case dismissed. A motion for summary judgment under Rule 56 of the
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Federal Rules of Civil Procedure will, if granted, end your case.
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Rule 56 tells you what you must do in order to oppose a motion for summary
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judgment. Generally, summary judgment must be granted when there is no genuine issue of
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material fact — that is, if there is no real dispute about any fact that would affect the result
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of your case, the party who asked for summary judgment is entitled to judgment as a matter
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of law, which will end your case. When a party you are suing makes a motion for summary
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judgment that is properly supported by declarations (or other sworn testimony), you cannot
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simply rely on what your complaint says. Instead, you must set out specific facts in
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declarations, depositions, answers to interrogatories, or authenticated documents, as provided
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in Rule 56(e), that contradict the facts shown in the defendants’ declarations and documents
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and show that there is a genuine issue of material fact for trial. If you do not submit your
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own evidence in opposition, summary judgment, if appropriate, may be entered against you.
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If summary judgment is granted in favor of defendants, your case will be dismissed and there
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will be no trial. See Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). Plaintiff
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No. C 11-4332 RS (PR)
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is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v.
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Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come forward
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with evidence showing triable issues of material fact on every essential element of his claim).
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Plaintiff is cautioned that failure to file an opposition to defendants’ motion for summary
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judgment may be deemed to be a consent by plaintiff to the granting of the motion, and
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granting of judgment against plaintiff without a trial. See Ghazali v. Moran, 46 F.3d 52,
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53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994).
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United States District Court
For the Northern District of California
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4.
Defendant shall file a reply brief no later than fifteen (15) days after plaintiff’s
opposition is filed.
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The motion shall be deemed submitted as of the date the reply brief is due. No
hearing will be held on the motion unless the Court so orders at a later date.
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All communications by the plaintiff with the Court must be served on
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defendant, or defendant’s counsel once counsel has been designated, by mailing a true copy
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of the document to defendant or defendant’s counsel.
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7.
Discovery may be taken in accordance with the Federal Rules of Civil
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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local
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Rule 16-1 is required before the parties may conduct discovery.
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8.
It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the
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court informed of any change of address and must comply with the Court’s orders in a timely
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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute
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pursuant to Federal Rule of Civil Procedure 41(b).
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9.
Extensions of time must be filed no later than the deadline sought to be
extended and must be accompanied by a showing of good cause.
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IT IS SO ORDERED.
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DATED: December 29, 2011
RICHARD SEEBORG
United States District Judge
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No. C 11-4332 RS (PR)
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