Goolsby v. Lewis et al

Filing 19

ORDER OF SERVICE re 1 Complaint, filed by Thomas Goolsby. Signed by Judge James Donato on 11/20/14. (lrcS, COURT STAFF) (Filed on 11/20/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS GOOLSBY,

Case No. 13-cv-03366-JD

Plaintiff,
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v.

ORDER OF SERVICE

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G. D. LEWIS, et al.,

Re: Dkt. No. 17

Defendants.

United States District Court
Northern District of California

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.

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Plaintiff’s amended complaint was dismissed with leave to amend and he has filed a second

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amended complaint.
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 seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

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the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

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United States District Court
Northern District of California

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committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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II.

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LEGAL CLAIMS
Plaintiff presents many clams of retaliation following his transfer to Pelican Bay State

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Prison (“PBSP”). “Within the prison context, a viable claim of First Amendment retaliation

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entails five basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote

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omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison

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officials under § 1983 for retaliation must allege that he was retaliated against for exercising his

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constitutional rights and that the retaliatory action did not advance legitimate penological goals,

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such as preserving institutional order and discipline).

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A prisoner must at minimum allege that he suffered harm, since harm that is more than

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minimal will almost always have a chilling effect. Rhodes, 408 F.3d at 567-68 n.11; see Gomez v.

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Vernon, 255 F.3d 1118, 1127-28 (9th Cir. 2001) (prisoner alleged injury by claiming he had to

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quit his law library job in the face of repeated threats by defendants to transfer him because of his

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complaints about the administration of the library).

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In the prior screening order, the Court noted that plaintiff had presented cognizable claims
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of retaliation against defendants Mills, Barnts, and Soderlund, however his claim regarding denial

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of access to the courts was dismissed with leave to amend. Plaintiff has filed a second amended

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complaint but it does not contain a claim regarding access to the courts, therefore the case will

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continue against Mills, Barnts, and Soderlund for claims of retaliation.

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Plaintiff has also sought to add Warden Lewis and Captain Puget as defendants with

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respect to the retaliation claims. Plaintiff states that Lewis and Puget participated and coordinated

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the retaliatory acts but provides no support for these allegations. He states that they recruited the

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other defendants to retaliate against plaintiff but this bare allegation is insufficient under Iqbal.

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Lewis and Puget are dismissed.
CONCLUSION

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United States District Court
Northern District of California

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1.

Plaintiff’s motion for reconsideration (Docket No. 17) is GRANTED and the Court

has considered the second amended complaint.
2.

The clerk shall issue a summons and the United States Marshal shall serve, without

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prepayment of fees, copies of the complaint with attachments and copies of this order on the

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following defendants at Pelican Bay State Prison: Litigation Coordinator William Barnts,

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Litigation Coordinator Soderlund, and Correctional Counselor (CCI) Mills. The remaining

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defendants are dismissed from this action.

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3.

In order to expedite the resolution of this case, the court orders as follows:
a.

No later than sixty days from the date of service, defendant shall file a

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motion for summary judgment or other dispositive motion. The motion shall be supported by

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adequate factual documentation and shall conform in all respects to Federal Rule of Civil

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Procedure 56, and shall include as exhibits all records and incident reports stemming from the

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events at issue. If defendant is of the opinion that this case cannot be resolved by summary

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judgment, he shall so inform the court prior to the date his summary judgment motion is due. All

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papers filed with the court shall be promptly served on the plaintiff.

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b.

At the time the dispositive motion is served, defendant shall also serve, on a

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separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-

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954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).
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See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be

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given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed,

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not earlier); Rand at 960 (separate paper requirement).
c.

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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 thirty days from the date the motion was served

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upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is

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

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

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If defendant files a motion for summary judgment claiming that plaintiff failed to exhaust
his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take

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United States District Court
Northern District of California

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note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided

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to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).
d.

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days after the opposition is served upon him.
e.

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If defendant wishes to file a reply brief, he shall do so no later than fifteen

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.
4.

All communications by plaintiff with the court must be served on defendant, or

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defendant’s counsel once counsel has been designated, by mailing a true copy of the document to

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defendants or defendants’ counsel.
5.
Discovery may be taken in accordance with the Federal Rules of Civil Procedure.
No further court order under Federal Rule of Civil Procedure 30(a)(2) is required before the
parties may conduct discovery.

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6.
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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

informed of any change of address by filing a separate paper with the clerk headed “Notice of
Change of Address.” He also must comply with the court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of
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Civil Procedure 41(b).
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IT IS SO ORDERED.
Dated: November 20, 2014
______________________________________
JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case dismissed.

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A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if

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granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for summary judgment.

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Generally, summary judgment must be granted when there is no genuine issue of material fact--

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that is, if there is no real dispute about any fact that would affect the result of your case, the party

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who asked for summary judgment is entitled to judgment as a matter of law, which will end your

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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

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United States District Court
Northern District of California

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complaint says. Instead, you must set out specific facts in declarations, depositions, answers to

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interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts

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shown in the defendant’s declarations and documents and show that there is a genuine issue of

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material fact for trial. If you do not submit your own evidence in opposition, summary judgment,

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if appropriate, may be entered against you. If summary judgment is granted, your case will be

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dismissed and there will be no trial.

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NOTICE -- WARNING (EXHAUSTION)
If defendants file a motion for summary judgment for failure to exhaust, they are seeking
to have your case dismissed. If the motion is granted it will end your case.
You have the right to present any evidence you may have which tends to show that you did

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exhaust your administrative remedies. Such evidence may be in the form of declarations

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(statements signed under penalty of perjury) or authenticated documents, that is, documents

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accompanied by a 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.

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If defendants file a motion for summary judgment for failure to exhaust and it is granted,
your case will be dismissed and there will be no trial.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS GOOLSBY,

Case No. 13-cv-03366-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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G. D. LEWIS, et al.,
Defendants.

United States District Court
Northern District of California

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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 11/20/2014, 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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Thomas Goolsby
F-19778
P.O. Box 7500
Crescent City, CA 95532

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Dated: 11/20/2014

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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