Williams v. Tilley

Filing 6

ORDER SCHEDULING DISPOSITIVE MOTIONS. Dispositive Motion due by 1/17/2013.. Signed by Judge Jeffrey S. White on 10/25/12. (jjoS, COURT STAFF) (Filed on 10/25/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KIRK DOUGLAS WILLIAMS,
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Plaintiff,
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K. TILLEY,
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Defendant.
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No. C 12-4707 JSW (PR)
ORDER SCHEDULING
DISPOSITIVE MOTIONS

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INTRODUCTION
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Plaintiff, a California prisoner proceeding pro se, filed this civil rights complaint
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in state court alleging that Defendant, an employee of Salinas Valley State Prison,
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violated Plaintiff’s constitutional rights. Defendant removed the case to this court. This
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Court now reviews the complaint pursuant to 28 U.S.C. § 1915A and sets fort a briefing
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schedule for filing an answer and a dispositive motion.
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DISCUSSION
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I.

Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners
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seek redress from a governmental entity or officer or employee of a governmental entity.
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28 U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss the
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complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or
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fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a
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defendant who is immune from such relief.” Id. § 1915A(b). Pro se pleadings must be

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

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1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007) (citations omitted). Although in order to state a claim a complaint “does not need

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detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his

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'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. . . . Factual allegations must

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be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v.

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Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer

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"enough facts to state a claim for relief that is plausible on its face." Id. at 1974. Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696,

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699 (9th Cir. 1990).

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"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

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detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his

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'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. . . . Factual allegations must

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be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at

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553-56. A motion to dismiss should be granted if the complaint does not proffer "enough

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facts to state a claim for relief that is plausible on its face." Id. at 570. This standard

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applies to all cases. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009) (finding

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under Twombly and Rule 8 of the Federal Rules of Civil Procedure, that complainant-

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detainee in a Bivens action failed to plead sufficient facts “plausibly showing” that top

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federal officials “purposely adopted a policy of classifying post-September-11 detainees

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as ‘of high interest’ because of their race, religion, or national origin” over more likely

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and non-discriminatory explanations). From these decisions, the following “two

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principles” arise: “First to be entitled to the presumption of truth, allegations in a

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complaint or counterclaim may not simply recite the elements of a cause of action but

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must contain sufficient allegations of underlying facts to give fair notice and to enable

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the opposing party to defend itself effectively. Second, the factual allegations that are

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taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to

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require the opposing party to be subjected to the expense of discovery and continued

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litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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II.

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Legal Claims
When liberally construed, Plaintiff’s allegations state cognizable claims against

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Defendant for violating his Eighth Amendment rights by denying him a meal, for

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violating his First Amendment rights by retaliating against him for filing administrative

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appeals, and for violating his constitutional right to access the courts by denying him

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administrative appeals forms.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1. Defendant shall file an answer to the complaint within 28 days.

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2. In order to expedite the resolution of this case:

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a. No later than 84 days from the date this order is filed, defendant shall

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file a motion for summary judgment or other dispositive motion. If defendant is of the

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opinion that this case cannot be resolved by summary judgment, he shall so inform the

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court prior to the date the summary judgment motion is due. All papers filed with the

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court shall be promptly served on the plaintiff.

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b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with

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the court and served upon defendant no later than 28 days from the date of service of the

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motion. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which

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is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998)

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(en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

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If defendants file an unenumerated motion to dismiss claiming that plaintiff failed

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to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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plaintiff should take note of the attached page headed “NOTICE -- WARNING

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(EXHAUSTION),” which is provided to him as required by Wyatt v. Terhune, 315 F.3d

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1108, 1120 n. 4 (9th Cir.), cert. denied, Alameida v. Wyatt, 124 S.Ct 50 (2003).

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c. Defendants shall file a reply brief no later than 14 days after the date of
service of the opposition.
d. 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.
e. Along with their motion, defendants shall proof that they served

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plaintiff the applicable warning(s) required by Woods v. Carey, No. 09-15548, slip op.

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7871 (9th Cir. July 6, 2012) and/or Stratton v. Buck, No. 10-35656, slip op. 11477 (9th

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Cir. Sept. 19, 2012), at the same time they served him with their motion. Failure to do so

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will result in the summary dismissal of their motion without prejudice.

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5. 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

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copy of the document to defendant or defendant’s counsel.

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6. 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

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Local Rule 16-1 is required before the parties may conduct discovery.

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7. It is the 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

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timely fashion. Failure to do so may result in the dismissal of this action for failure to

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prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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DATED: October 25, 2012
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JEFFREY S. WHITE
United States District Judge

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NOTICE -- WARNING (SUMMARY JUDGMENT)

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If defendants move for summary judgment, they are seeking to have your case
dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary judgment.
Generally, summary judgment must be granted when there is no genuine issue of material
fact--that is, if there is no real dispute about any fact that would affect the result of your case,
the party who asked for summary judgment is entitled to judgment as a matter of law, which
will end your case. When a party you are suing makes a motion for summary judgment that is
properly supported by declarations (or other sworn testimony), you cannot simply rely on what
your complaint says. Instead, you must set out specific facts in declarations, depositions,
answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that
contradict the facts shown in the defendant's declarations and documents and show that there is
a genuine issue of material fact for trial. If you do not submit your own evidence in opposition,
summary judgment, if appropriate, may be entered against you. If summary judgment is granted,
your case will be dismissed and there will be no trial.

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NOTICE -- WARNING (EXHAUSTION)

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If defendants file a motion to dismiss for failure to exhaust administrative remedies, they
are seeking to have your case dismissed. If the motion is granted it will end your case and there
will be no trial.
A motion to dismiss for failure to exhaust administrative remedies is similar to a motion
for summary judgment in that the court will consider materials beyond the pleadings. You have
the right to present any evidence you may have which tends to show that you did exhaust your
administrative remedies. Such evidence may be in the form of declarations (statements signed
under penalty of perjury) or authenticated documents, that is, documents accompanied by a
declaration showing where they came from and why they are authentic, or other sworn papers,
such as answers to interrogatories or depositions. In considering a motion to dismiss for failure
to exhaust administrative remedies, the court can decided disputed factual matters with regard to
the exhaustion question. Because the court can resolve factual disputes, unlike a summary
judgment opposition, it is not enough to merely show a genuine issue of material fact in
opposition to the motion to dismiss.

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAMS,

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Case Number: CV12-04707 JSW
Plaintiff,

CERTIFICATE OF SERVICE

v.
TILLEY et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 25, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Kirk Douglas Williams F-44523
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960
Dated: October 25, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk