Percelle v. Pearson et al

Filing 6

ORDER OF SERVICE Dispositive Motion due by 2/5/2013. Signed by Judge Thelton E. Henderson on 11/07/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 11/8/2012)

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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 10 STEVEN DALE PERCELLE, No. C-12-5343 TEH (PR) 11 United States District Court For the Northern District of California Plaintiff, 12 v. ORDER OF SERVICE 13 14 15 S. PEARSON, D. ARREDONDO, M. WILLIAMS, R. WHITE, S. MAUGHMER, J. JEFFERSON, M. BRODE and D. FLETCHER, 16 Defendants. 17 18 19 20 21 22 23 24 25 26 / Plaintiff Steven Dale Percelle, a prisoner presently incarcerated at the Correction Training Facility (“CTF”) in Soledad, California, has filed a pro se civil rights complaint under 42 U.S.C. § 1983, alleging that his First and Fourteenth Amendment rights under the United States Constitution were violated by Defendants who classified him as a gang member in retaliation for prosecuting an unrelated lawsuit against the California Department of Corrections and Rehabilitation (“CDCR”). This action is now before the Court for initial screening pursuant to 28 27 U.S.C. § 1915A. 28 Doc. #1 at 4-9. 1 2 I Federal courts must engage in a preliminary screening of 3 cases in which prisoners seek redress from a governmental entity or 4 officer or employee of a governmental entity. 5 The court must identify cognizable claims or dismiss the complaint, 6 or any portion of the complaint, if the complaint “is frivolous, 7 malicious, or fails to state a claim upon which relief may be 8 granted,” or “seeks monetary relief from a defendant who is immune 9 from such relief.” Id. § 1915A(b). 28 U.S.C. § 1915A(a). Pleadings filed by pro se 10 litigants, however, must be liberally construed. 11 627 F.3d 338, 342 (9th Cir. 2010). 12 13 Hebbe v. Pliler, II To state a claim under 42 U.S.C. § 1983, a plaintiff must 14 allege two essential elements: 15 Constitution or laws of the United States was violated, and (2) that 16 the alleged violation was committed by a person acting under the 17 color of state law. 18 (1) that a right secured by the West v. Atkins, 487 U.S. 42, 48 (1988). The Due Process Clause of the Fourteenth Amendment 19 protects individuals against governmental deprivations of liberty. 20 Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972); Mullins v. 21 Oregon, 57 F.3d 789, 795 (9th Cir. 1995). 22 conditions that are so severe as to affect the sentence imposed in 23 an unexpected manner implicate the Due Process Clause itself, 24 whether or not they are authorized by state law. 25 Conner, 515 U.S. 472, 484 (1995) (citing Vitek v. Jones, 445 U.S. 26 480, 493 (1980) (transfer to mental hospital), and Washington v. 27 Harper, 494 U.S. 210, 221-22 (1990) (involuntary administration of 28 2 Changes in prison See Sandin v. 1 psychotropic drugs)). 2 and are closely related to the expected terms of confinement may 3 also amount to deprivations of a procedurally protected liberty 4 interest if the deprivation imposes an “atypical and significant 5 hardship on the inmate in relation to the ordinary incidents of 6 prison life.” 7 “atypical and significant [under Sandin] . . . requires a case by 8 case, fact by fact consideration.” 9 861 (9th Cir. 2003) (quoting Keenan v. Hall, 83 F.3d 1083, 1089 (9th 10 11 Deprivations that are authorized by state law Sandin, 515 U.S. at 484. Whether a restraint is Ramirez v. Galaza, 334 F.3d 850, Cir. 1996)). “Within the prison context, a viable claim of First 12 Amendment retaliation entails five basic elements: 13 that a state actor took some adverse action against an inmate 14 (2) because of (3) that prisoner’s protected conduct, and that such 15 action (4) chilled the inmate’s exercise of his First Amendment 16 rights, and (5) the action did not reasonably advance a legitimate 17 correctional goal.” 18 Cir. 2005) (footnote omitted). 19 is conduct protected under the First Amendment right to petition the 20 government for redress of grievances, see Hines v. Gomez, 853 F. 21 Supp. 329, 333 (N.D. Cal. 1994), and protects both the filing, see 22 id., and content, see Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 23 1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 24 230 n.2 (2001), of prison grievances. 25 he suffered harm, see Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 26 2000) (holding that a retaliation claim is not actionable unless 27 there is an allegation of harm), but he need not demonstrate a total 28 (1) An assertion Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th The right to file a prison grievance 3 The prisoner must allege that 1 chilling of his First Amendment rights in order to establish a 2 retaliation claim. 3 argument that inmate did not state a claim for relief because he had 4 been able to file inmate grievances and a lawsuit). 5 See Rhodes, 408 F.3d at 568-69 (rejecting In his complaint, Plaintiff makes the following 6 allegations. 7 lawsuit against the CDCR for the unlawful medical treatment he 8 received at CTF. 9 CDCR in the amount of $550,000. Since August 2003, Plaintiff has been prosecuting a On June 23, 2010, default was entered against the Comp. ¶ 9. On November 18, 2010, 10 Defendants Pearson, Williams and Arrendondo initiated a cell search 11 of Plaintiff’s cell and accused him of being a member of a prison 12 gang. 13 Fletcher authored a memorandum declaring that Plaintiff was a prison 14 gang member. 15 Jefferson and Brode officially validated Plaintiff as a member of 16 the Black Guerrilla Family (“BGF”) Prison Gang without verifying the 17 requisite criteria as mandated by Title 15, California Code of 18 Regulations, section 3378. 19 acts of Defendants Pearson, Williams, Arredondo, Jefferson, Fletcher 20 and Brode labeling Plaintiff a gang member caused Plaintiff to be 21 locked up in Administrative Segregation (“Ad Seg”), pending review 22 by the CTF Institutional Classification Committee (“ICC”). 23 21. 24 by Defendants White and Maughmer, for review of the evidence showing 25 that Plaintiff was a member of a gang. 26 White and Maughmer validated Plaintiff as a member of a prison gang. 27 Comp. ¶ 22. 28 Comp. ¶ 10. On August 27, 2011, Defendants Pearson and Comp. ¶ 18. On December 15, 2011, Defendants Comp. ¶ 19. On January 23, 2012, the Comp. ¶ On January 26, 2012, Plaintiff appeared before the ICC, chaired 4 Comp. ¶ 22. Defendants 1 Liberally construed, Plaintiff’s allegations appear to 2 state the following cognizable 42 U.S.C. § 1983 claims: 3 Plaintiff’s due process rights were violated by all named Defendants 4 who validated Plaintiff as a prison gang member in retaliation for 5 his prosecuting a lawsuit against the CDCR, which caused him to be 6 locked up in Ad Seg, and (2) that Plaintiff’s First Amendment rights 7 were violated by all Defendants for retaliating against him for 8 exercising his First Amendment right to access the courts. 9 (1) that III 10 For the foregoing reasons and for good cause shown: 11 1. The Clerk shall issue summons and the United States 12 Marshal shall serve, without prepayment of fees, copies of the 13 Complaint in this matter, all attachments thereto, and copies of 14 this Order on CTF employees S. Pearson, D. Arrendondo, M. Williams, 15 R. White, S. Maughmer, J. Jefferson, M. Brode and D. Fletcher. 16 Clerk also shall serve a copy of this Order on Plaintiff. 17 18 2. The To expedite the resolution of this case, the Court orders as follows: 19 a. No later than ninety (90) days from the date of 20 this Order, Defendants shall file a motion for summary judgment or 21 other dispositive motion. 22 supported by adequate factual documentation and shall conform in all 23 respects to Federal Rule of Civil Procedure 56, and shall include as 24 exhibits all records and incident reports stemming from the events 25 at issue. 26 resolved by summary judgment or other dispositive motion, they shall 27 so inform the Court prior to the date their motion is due. 28 A motion for summary judgment shall be If Defendants are of the opinion that this case cannot be 5 All 1 papers filed with the Court shall be served promptly on Plaintiff. 2 b. Plaintiff’s opposition to the dispositive motion 3 shall be filed with the Court and served upon Defendants no later 4 than thirty (30) days after Defendants serve Plaintiff with the 5 motion. 6 c. Plaintiff is advised that a motion for summary 7 judgment under Rule 56 of the Federal Rules of Civil Procedure will, 8 if granted, end your case. 9 order to oppose a motion for summary judgment. Rule 56 tells you what you must do in Generally, summary 10 judgment must be granted when there is no genuine issue of material 11 fact - that is, if there is no real dispute about any fact that 12 would affect the result of your case, the party who asked for 13 summary judgment is entitled to judgment as a matter of law, which 14 will end your case. 15 summary judgment that is properly supported by declarations (or 16 other sworn testimony), you cannot simply rely on what your 17 complaint says. 18 declarations, depositions, answers to interrogatories, or 19 authenticated documents, as provided in Rule 56(e), that contradict 20 the facts shown in the defendants’ declarations and documents and 21 show that there is a genuine issue of material fact for trial. 22 you do not submit your own evidence in opposition, summary judgment, 23 if appropriate, may be entered against you. 24 granted, your case will be dismissed and there will be no trial. 25 Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) 26 (App. A). When a party you are suing makes a motion for Instead, you must set out specific facts in 27 28 6 If If summary judgment is 1 Plaintiff also is advised that a motion to dismiss for 2 failure to exhaust administrative remedies under 42 U.S.C. 3 § 1997e(a) will, if granted, end your case, albeit without 4 prejudice. 5 opposition in order to dispute any “factual record” presented by the 6 Defendants in their motion to dismiss. 7 1108, 1120 n.14 (9th Cir. 2003). 8 of declarations (statements signed under penalty of perjury) or 9 authenticated documents, that is, documents accompanied by a You must “develop a record” and present it in your Wyatt v. Terhune, 315 F.3d Such evidence may be in the form 10 declaration showing where they came from and why they are authentic, 11 or other sworn papers, such as answers to interrogatories or 12 depositions. 13 14 If Defendants file a motion to dismiss and it is granted, your case will be dismissed and there will be no trial. 15 d. Defendants shall file a reply brief within 16 fifteen (15) days of the date on which Plaintiff serves them with 17 the opposition. 18 e. The motion shall be deemed submitted as of the 19 date the reply brief is due. 20 unless the Court so orders at a later date. 21 3. No hearing will be held on the motion Discovery may be taken in accordance with the Federal 22 Rules of Civil Procedure. 23 the parties may conduct discovery. 24 4. No further Court order is required before All communications by Plaintiff with the Court must 25 be served on Defendants, or Defendants’ counsel once counsel has 26 been designated, by mailing a true copy of the document to 27 Defendants or Defendants’ counsel. 28 7 1 5. It is Plaintiff’s responsibility to prosecute this 2 case. 3 change of address and must comply with the Court’s orders in a 4 timely fashion. 5 this action pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff must keep the Court and all parties informed of any Failure to do so may result in the dismissal of 6 IT IS SO ORDERED. 7 8 DATED 9 11/07/2012 THELTON E. HENDERSON United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 G:\PRO-SE\TEH\CR.12\Percelle 12-5343-order of service.wpd 28 8

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