Grozav v. Jacquez et al
Filing
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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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Plaintiff(s),
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v.
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JESSE R. GROZAV, F-15289,
F. JACQUEZ, et al.,
Defendant(s).
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No. C 12-3707 CRB (PR)
ORDER OF SERVICE
(Docket # 3)
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Plaintiff, a prisoner at Pelican Bay Prison (PBSP), has filed a pro se
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complaint under 42 U.S.C. § 1983 challenging his placement and indefinite
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retention in administrative segregation in PBSP's secure housing unit (SHU) on
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the basis of association with the Northern Structure prison gang. Plaintiff alleges
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that various prison officials at PBSP had him validated as a Northern Structure
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associate on the basis of evidence that is unreliable and insufficient. Plaintiff also
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alleges that the validation was the result of unlawful retaliation against all
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Northern Hispanic inmates for the attempted murder of a correctional officer by a
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Northern Hispanic prison gang member.
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DISCUSSION
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).
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
The decision to place and retain a prisoner in administrative segregation
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must comport with procedural due process only if the specific deprivation at play
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constitutes "atypical and significant hardship on the inmate in relation to the
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ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995).
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Plaintiff's deprivation here – an indefinite term of segregation in the SHU –
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suggests sufficient severity to implicate procedural due process protection.
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Assuming that this is the case, the Ninth Circuit has held that plaintiff was
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entitled to the following procedures before placement in the SHU: (1) an informal
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nonadversary hearing within a reasonable time after being segregated, (2) notice
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of the charges or the reasons segregation is being considered, and (3) an
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opportunity to present his views. See Toussaint v. McCarthy, 801 F.2d 1080,
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1100 (9th Cir 1986). There also must be "some evidence" to support the decision
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to segregate plaintiff for administrative reasons, id. at 1104-04 (citing
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Superintendent v. Hill, 472 U.S. 445, 455 (1985)), and the evidence relied upon
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must have "some indicia of reliability," Madrid v. Gomez, 889 F. Supp. 1146,
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1273-74 (N.D. Cal. 1995). In view of the following, plaintiff's allegations
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regarding placement and retention in administrative segregation in the SHU,
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when liberally construed, state cognizable claims under § 1983 for denial of due
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process against the named defendants. And also when liberally construed,
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plaintiff's allegations that he was validated in retaliation for the actions of another
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Northern Hispanic inmate arguably state a cognizable claim under § 1983 for
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retaliation because of plaintiff's race. See Maynard v. City of San Jose, 37 F.3d
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1396, 1404 (9th Cir. 1994) (right to equal protection includes right not to be
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retaliated against because of one's protected status).
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C.
Motion for Appointment of Counsel
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).
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 at PBSP.
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The clerk 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 must be accompanied by a similar notice.
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Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935
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(notice requirement set out in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003),
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must be served concurrently with motion to dismiss for failure to exhaust
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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).
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). You have the right to present any evidence to show that you
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did exhaust your available administrative remedies before coming to federal
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court. Such evidence may include: (1) declarations, which are statements signed
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under penalty of perjury by you or others who have personal knowledge of
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relevant matters; (2) authenticated documents – documents accompanied by a
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declaration showing where they came from and why they are authentic, or other
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sworn papers such as answers to interrogatories or depositions; (3) statements in
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your complaint insofar as they were made under penalty of perjury and they show
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that you have personal knowledge of the matters state therein. In considering a
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motion to dismiss for failure to exhaust, the court can decide disputed issues of
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fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09.
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(The Rand and Wyatt/Stratton notices above do not excuse defendants'
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obligation to serve said notices again concurrently with motions to dismiss for
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failure to exhaust available administrative remedies and motions for summary
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judgment. Woods, 684 F.3d at 935.)
d.
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Defendants must serve and file a reply to an opposition not
more than 14 days after the opposition is served and filed.
e.
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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
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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.
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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: Jan. 3, 2013
CHARLES R. BREYER
United States District Judge
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G:\PRO-SE\CRB\CR.12\Grozav, J.12-3707.serve.wpd
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