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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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

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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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