Morris v. DuCart
Filing
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ORDER OF SERVICE Habeas Answer or Dispositive Motion due by 4/28/2014.. Signed by Judge Charles R. Breyer on 2/21/2014. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 2/25/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JACK L. MORRIS, C06409,
Plaintiff(s),
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v.
CLARK E. DuCART, et al.,
Defendant(s).
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No. C 13-5824 CRB (PR)
ORDER OF SERVICE
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Plaintiff, a prisoner at Pelican Bay State 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 being a member of the Mexican Mafia (EME) prison gang. Plaintiff
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alleges that after he was released from PBSP’s SHU as an inactive EME
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associate and transferred to the general population at the California Correctional
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Institution (CCI), prison officials at CCI and the California Department of
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Corrections and Rehabilitation (CDCR) had him re-classified and re-validated as
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an EME member (as opposed to an EME associate) and transferred back to
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PBSP’s SHU, without providing him proper notice or an opportunity to be heard
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and without any evidence of gang membership. Plaintiff also alleges that prison
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officials at PBSP have elected to retain him in the SHU as an EME member
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despite a lack of evidence of gang membership to support their decision.
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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 his current placement and retention in PBSP’s SHU on the basis of
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being an EME member , when liberally construed, state cognizable claims under
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§ 1983 for denial of due process against the named defendants at CCI, CDCR in
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Sacramento and PBSP.
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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 following defendants at PBSP
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– Clark E. DuCart; R. K. Swift; T. Puget; K. Getz; W. Reynolds; T. Adams; M.
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Russell and P. Kenney – and following defendant at CCI – J. Turmeze – and the
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following defendant at CDCR in Sacramento – B. Kingston (Office of
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Correctional Safety). 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
a.
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).
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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
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present it in your opposition in order to dispute any “factual record” presented by
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the defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108,
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1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show
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that you did exhaust your available administrative remedies before coming to
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federal court. Such evidence may include: (1) declarations, which are statements
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signed under penalty of perjury by you or others who have personal knowledge
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of 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: Feb. 21, 2014
CHARLES R. BREYER
United States District Judge
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G:\PRO-SE\CRB\CR.13\Morris, J.13-5824.serve.wpd
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