Grozav v. Jacquez et al

Filing 6

ORDER OF SERVICE Dispositive Motion due by 4/8/2013.. Signed by Judge Charles R. Breyer on 1/3/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 1/7/2013)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 Plaintiff(s), 10 v. 11 12 ) ) ) ) ) ) ) ) ) ) JESSE R. GROZAV, F-15289, F. JACQUEZ, et al., Defendant(s). 13 No. C 12-3707 CRB (PR) ORDER OF SERVICE (Docket # 3) 14 15 Plaintiff, a prisoner at Pelican Bay Prison (PBSP), has filed a pro se 16 complaint under 42 U.S.C. § 1983 challenging his placement and indefinite 17 retention in administrative segregation in PBSP's secure housing unit (SHU) on 18 the basis of association with the Northern Structure prison gang. Plaintiff alleges 19 that various prison officials at PBSP had him validated as a Northern Structure 20 associate on the basis of evidence that is unreliable and insufficient. Plaintiff also 21 alleges that the validation was the result of unlawful retaliation against all 22 Northern Hispanic inmates for the attempted murder of a correctional officer by a 23 Northern Hispanic prison gang member. 24 25 26 DISCUSSION A. Standard of Review Federal courts must engage in a preliminary screening of cases in which 27 prisoners seek redress from a governmental entity or officer or employee of a 28 governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable 1 claims or dismiss the complaint, or any portion of the complaint, if the complaint 2 "is frivolous, malicious, or fails to state a claim upon which relief may be 3 granted," or "seeks monetary relief from a defendant who is immune from such 4 relief." Id. § 1915A(b). Pro se pleadings must be liberally construed, however. 5 Balistreri v. 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 6 7 essential elements: (1) that a right secured by the Constitution or laws of the 8 United States was violated, and (2) that the alleged violation was committed by a 9 person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 10 (1988). 11 B. 12 Legal Claims The decision to place and retain a prisoner in administrative segregation 13 must comport with procedural due process only if the specific deprivation at play 14 constitutes "atypical and significant hardship on the inmate in relation to the 15 ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). 16 Plaintiff's deprivation here – an indefinite term of segregation in the SHU – 17 suggests sufficient severity to implicate procedural due process protection. 18 Assuming that this is the case, the Ninth Circuit has held that plaintiff was 19 entitled to the following procedures before placement in the SHU: (1) an informal 20 nonadversary hearing within a reasonable time after being segregated, (2) notice 21 of the charges or the reasons segregation is being considered, and (3) an 22 opportunity to present his views. See Toussaint v. McCarthy, 801 F.2d 1080, 23 1100 (9th Cir 1986). There also must be "some evidence" to support the decision 24 to segregate plaintiff for administrative reasons, id. at 1104-04 (citing 25 Superintendent v. Hill, 472 U.S. 445, 455 (1985)), and the evidence relied upon 26 must have "some indicia of reliability," Madrid v. Gomez, 889 F. Supp. 1146, 27 28 2 1 1273-74 (N.D. Cal. 1995). In view of the following, plaintiff's allegations 2 regarding placement and retention in administrative segregation in the SHU, 3 when liberally construed, state cognizable claims under § 1983 for denial of due 4 process against the named defendants. And also when liberally construed, 5 plaintiff's allegations that he was validated in retaliation for the actions of another 6 Northern Hispanic inmate arguably state a cognizable claim under § 1983 for 7 retaliation because of plaintiff's race. See Maynard v. City of San Jose, 37 F.3d 8 1396, 1404 (9th Cir. 1994) (right to equal protection includes right not to be 9 retaliated against because of one's protected status). 10 11 C. Motion for Appointment of Counsel Plaintiff's motion for appointment of counsel (docket # 3) is DENIED for 12 lack of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 13 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). CONCLUSION 14 15 For the foregoing reasons and for good cause shown, 16 1. The clerk shall issue summons and the United States Marshal shall 17 serve, without prepayment of fees, copies of the complaint in this matter, all 18 attachments thereto, and copies of this order on the named defendants at PBSP. 19 The clerk also shall serve a copy of this order on plaintiff. 20 2. 21 follows: 22 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 23 shall serve and file a motion for summary judgment or other dispositive motion. 24 A motion for summary judgment must be supported by adequate factual 25 documentation and must conform in all respects to Federal Rule of Civil 26 Procedure 56, and must include as exhibits all records and incident reports 27 28 3 1 stemming from the events at issue. A motion for summary judgment also must 2 be accompanied by a Rand notice so that plaintiff will have fair, timely and 3 adequate notice of what is required of him in order to oppose the motion. Woods 4 v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand 5 v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with 6 motion for summary judgment). A motion to dismiss for failure to exhaust 7 available administrative remedies must be accompanied by a similar notice. 8 Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 9 (notice requirement set out in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), 10 must be served concurrently with motion to dismiss for failure to exhaust 11 available administrative remedies). 12 If defendants are of the opinion that this case cannot be resolved by 13 summary judgment or other dispositive motion, they shall so inform the court 14 prior to the date their motion is due. All papers filed with the court shall be 15 served promptly on plaintiff. 16 b. Plaintiff must serve and file an opposition or statement of 17 non-opposition to the dispositive motion not more than 28 days after the motion 18 is served and filed. 19 c. Plaintiff is advised that a motion for summary judgment 20 under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your 21 case. Rule 56 tells you what you must do in order to oppose a motion for 22 summary judgment. Generally, summary judgment must be granted when there 23 is no genuine issue of material fact – that is, if there is no real dispute about any 24 fact that would affect the result of your case, the party who asked for summary 25 judgment is entitled to judgment as a matter of law, which will end your case. 26 When a party you are suing makes a motion for summary judgment that is 27 28 4 1 properly supported by declarations (or other sworn testimony), you cannot simply 2 rely on what your complaint says. Instead, you must set out specific facts in 3 declarations, depositions, answers to interrogatories, or authenticated documents, 4 as provided in Rule 56(e), that contradicts the facts shown in the defendant's 5 declarations and documents and show that there is a genuine issue of material 6 fact for trial. If you do not submit your own evidence in opposition, summary 7 judgment, if appropriate, may be entered against you. If summary judgment is 8 granted, your case will be dismissed and there will be no trial. Rand v. Rowland, 9 154 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 10 11 available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, 12 end your case, albeit without prejudice. You must "develop a record" and present 13 it in your opposition in order to dispute any "factual record" presented by the 14 defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1120 15 n.14 (9th Cir. 2003). You have the right to present any evidence to show that you 16 did exhaust your available administrative remedies before coming to federal 17 court. Such evidence may include: (1) declarations, which are statements signed 18 under penalty of perjury by you or others who have personal knowledge of 19 relevant matters; (2) authenticated documents – documents accompanied by a 20 declaration showing where they came from and why they are authentic, or other 21 sworn papers such as answers to interrogatories or depositions; (3) statements in 22 your complaint insofar as they were made under penalty of perjury and they show 23 that you have personal knowledge of the matters state therein. In considering a 24 motion to dismiss for failure to exhaust, the court can decide disputed issues of 25 fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09. 26 / 27 28 5 1 (The Rand and Wyatt/Stratton notices above do not excuse defendants' 2 obligation to serve said notices again concurrently with motions to dismiss for 3 failure to exhaust available administrative remedies and motions for summary 4 judgment. Woods, 684 F.3d at 935.) d. 5 6 Defendants must serve and file a reply to an opposition not more than 14 days after the opposition is served and filed. e. 7 The motion shall be deemed submitted as of the date the 8 reply is due. No hearing will be held on the motion unless the court so orders at a 9 later date. 10 3. Discovery may be taken in accordance with the Federal Rules of 11 Civil Procedure. No further court order under Federal Rule of Civil Procedure 12 30(a)(2) or Local Rule 16 is required before the parties may conduct discovery. 13 4. All communications by plaintiff with the court must be served on 14 defendants, or defendants' counsel once counsel has been designated, by mailing 15 a true copy of the document to defendants or defendants' counsel. 16 5. It is plaintiff's responsibility to prosecute this case. Plaintiff must 17 keep the court and all parties informed of any change of address and must comply 18 with the court's orders in a timely fashion. Failure to do so may result in the 19 dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b). 20 SO ORDERED. 21 DATED: Jan. 3, 2013 CHARLES R. BREYER United States District Judge 22 23 24 25 26 G:\PRO-SE\CRB\CR.12\Grozav, J.12-3707.serve.wpd 27 28 6

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