Peoples v. Mata et al

Filing 11

ORDER OF SERVICE and order denying 3 MOTION to Appoint Counsel filed by Timothy Peoples, Jr., Motions terminated: 3 MOTION to Appoint Counsel filed by Timothy Peoples, Jr.. Dispositive Motion due by 3/12/2013.. Signed by Judge Charles R. Breyer on 12/10/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 12/12/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TIMOTHY PEOPLES, JR., H-63933,

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Plaintiff(s),
v.

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E. MATA, et al.,
Defendant(s).

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No. C 12-2163 CRB (PR)
ORDER OF SERVICE
(Docket #3)

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Plaintiff, a prisoner at Salinas Valley State Prison (SVSP), has filed a pro

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se complaint under 42 U.S.C. § 1983 alleging interference with his access to the

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courts and retaliation in response to his filing inmate grievances. He seeks

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declaratory, injunctive and monetary relief. He also seeks appointment of

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counsel.
DISCUSSION

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A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which

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prisoners seek redress from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

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claims or dismiss the complaint, or any portion of the complaint, if the complaint

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"is frivolous, malicious, or fails to state a claim upon which relief may be

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granted," or "seeks monetary relief from a defendant who is immune from such

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relief." Id. § 1915A(b). Pro se pleadings must be liberally construed, however.

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated, and (2) that the alleged violation was committed by a

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person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48

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(1988).

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B.

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Legal Claims
Plaintiff alleges that correctional officer E. Mata unlawfully interfered

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with his right of access to the courts by withholding his trust account papers for

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20 days. The Ninth Circuit has differentiated between two types of access to

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courts claims: "those involving prisoners' right to affirmative assistance and those

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involving prisoners' right[] to litigate without active interference." Silva v. Di

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Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (emphasis in original). Regardless

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of whether a prisoner's denial of access to courts claim is based on his right to

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affirmative assistance or his right to litigate without active interference, he must

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allege: (1) a non-frivolous legal attack on his conviction, sentence or conditions

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of confinement has been frustrated or impeded, and (2) he has suffered an actual

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injury as a result. See id. at 1102-04. As an element of any denial of access to

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courts claim, actual injury "is a jurisdictional requirement that flows from the

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standing doctrine and may not be waived." Nevada Dep't of Corrections v.

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Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis v. Casey, 518 U.S.

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343, 349 (1996)). Plaintiff's allegations that Mata withheld his trust account

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papers for 20 days fail to state a claim for denial of access to the courts and will

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be dismissed. There is no indication whatsoever that plaintiff suffered an actual

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injury to court access as a result of Mata's alleged action. See id.

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Plaintiff also alleges that various California Department of Corrections
and Rehabilitation (CDCR) and SVSP officials retaliated against him for filing

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inmate grievances by, among other things, using excessive force against him,

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refusing to act on his grievances and appeals, and depriving him of necessary

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medical care. Liberally construed, plaintiff's allegations appear to state

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cognizable retaliation claims under § 1983 against the named defendants because

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it is well established that prison officials may not retaliate against prisoners for

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filing inmate grievances. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.

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2005); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003).

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C.

Motion for Appointment of Counsel

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Plaintiff's motion for appointment of counsel (docket #3) is DENIED for

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lack of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

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The court will consider appointment of counsel on its own motion, and seek

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volunteer counsel to agree to represent plaintiff pro bono, if it determines at a

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later time in the proceedings that appointment of counsel is warranted.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

The clerk shall issue summons and the United States Marshal shall

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serve, without prepayment of fees, copies of the complaint in this matter, all

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attachments thereto, and copies of this order on the named defendants. The clerk

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also shall serve a copy of this order on plaintiff.

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2.

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follows:

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In order to expedite the resolution of this case, the court orders as

a.

No later than 90 days from the date of this order, defendants

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shall serve and file a motion for summary judgment or other dispositive motion.

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A motion for summary judgment must be supported by adequate factual

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documentation and must conform in all respects to Federal Rule of Civil

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Procedure 56, and must include as exhibits all records and incident reports

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stemming from the events at issue. A motion for summary judgment also must

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be accompanied by a Rand notice so that plaintiff will have fair, timely and

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adequate notice of what is required of him in order to oppose the motion. Woods

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v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand

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v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with

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motion for summary judgment). A motion to dismiss for failure to exhaust

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available administrative remedies similarly must be accompanied by a Wyatt

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notice. Id. (notice requirement set out in Wyatt v. Terhune, 315 F.3d 1108 (9th

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Cir. 2003), must be served concurrently with motion to dismiss for failure to

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exhaust available administrative remedies).

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If defendants are of the opinion that this case cannot be resolved by

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summary judgment or other dispositive motion, they shall so inform the court

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prior to the date their motion is due. All papers filed with the court shall be

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served promptly on plaintiff.

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b.

Plaintiff must serve and file an opposition or statement of

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non-opposition to the dispositive motion not more than 28 days after the motion

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is served and filed.

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c.

Plaintiff is advised that a motion for summary judgment

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under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your

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case. Rule 56 tells you what you must do in order to oppose a motion for

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summary judgment. Generally, summary judgment must be granted when there

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is no genuine issue of material fact – that is, if there is no real dispute about any

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fact that would affect the result of your case, the party who asked for summary

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judgment is entitled to judgment as a matter of law, which will end your case.

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When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply

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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,

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as provided in Rule 56(e), that contradicts the facts shown in the defendant's

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declarations and documents and show that there is a genuine issue of material

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fact for trial. If you do not submit your own evidence in opposition, summary

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judgment, if appropriate, may be entered against you. If summary judgment is

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granted, your case will be dismissed and there will be no trial. Rand v. Rowland,

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154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).

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Plaintiff also is advised that a motion to dismiss for failure to exhaust

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available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted,

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end your case, albeit without prejudice. You must "develop a record" and present

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it in your opposition in order to dispute any "factual record" presented by the

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defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1120

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n.14 (9th Cir. 2003).

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(The Rand and Wyatt notices above do not excuse defendants' obligation

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to serve said notices again concurrently with motions to dismiss for failure to

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exhaust available administrative remedies and motions for summary judgment.

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Woods, 684 F.3d at 935.)

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d.

Defendants must serve and file a reply to an opposition not

more than 14 days after the opposition is served and filed.

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e.

The motion shall be deemed submitted as of the date the

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reply is due. No hearing will be held on the motion unless the court so orders at a

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later date.

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3.

Discovery may be taken in accordance with the Federal Rules of

Civil Procedure. No further court order under Federal Rule of Civil Procedure

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30(a)(2) or Local Rule 16 is required before the parties may conduct discovery.
4.

All communications by plaintiff with the court must be served on

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defendants, or defendants' counsel once counsel has been designated, by mailing

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a true copy of the document to defendants or defendants' counsel.

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5.

It is plaintiff's responsibility to prosecute this case. Plaintiff must

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keep the court and all parties informed of any change of address and must comply

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with the court's orders in a timely fashion. Failure to do so may result in the

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dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b).

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SO ORDERED.

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DATED: Dec. 10, 2012
CHARLES R. BREYER
United States District Judge

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