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)

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