Taylor v. Jones et al

Filing 15

ORDER SERVING COGNIZABLE CLAIMS. Signed by Judge Vince Chhabria on 7/3/2014. (Attachments: # 1 Certificate/Proof of Service)(knm, COURT STAFF) (Filed on 7/3/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RALPH A. TAYLOR,

Case No. 14-0647-VC (PR)

Plaintiffs,
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v.

ORDER SERVING COGNIZABLE
CLAIMS

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EDMUND G. BROWN, JR. Governor, et al.,
Defendants.

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United States District Court
Northern District of California

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Ralph A. Taylor, an inmate at Pelican Bay State Prison (“Pelican Bay”) proceeding pro se,

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filed a civil rights complaint pursuant to 42 U.S.C. § 1983 alleging constitutional violations

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against defendants employed at Pelican Bay. On May 15, 2014, the Court reviewed Taylor’s first

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amended complaint and found that he had stated a cognizable First Amendment claim for damages

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against D. Milligan, G. Pimentel and G.D. Lewis and that he had stated a cognizable First

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Amendment claim for injunctive relief against Lewis, in his official capacity. The Court

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dismissed without leave to amend Taylor’s class claims and claims based upon the denial of

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administrative appeals. The Court dismissed with leave to amend Taylor’s Equal Protection

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claims and First Amendment claims against all defendants other than Milligan, Pimentel and

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Lewis. The Court allowed Taylor twenty-one days from the date of the Order to file an amended

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complaint.

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On June 5, 2014, the Court received Taylor’s Second Amended Complaint (“SAC”), which

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was docketed on June 25, 2014. Doc. no. 14. The Court now reviews Taylor’s SAC to determine

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if it has remedied the deficiencies noted in the Court’s May 15, 2014 Order.
DISCUSSION

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I. First Amendment Claim
The Court dismissed Taylor’s First Amendment claim with leave to amend against all
defendants other than Milligan, Pimentel and Lewis. The SAC does not include allegations

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against any other defendant. Therefore, the First Amendment claim against all other defendants is

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now dismissed without leave to amend.

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II. Equal Protection Claim
The Court dismissed Taylor’s Equal Protection claim because the allegations did not make

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clear whether he was claiming discrimination based on his race or his membership in an

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ideological movement and because his allegations did not indicate that any specific defendant

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intentionally discriminated against him on either basis.
The SAC alleges the following:

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Pelican Bay Warden Lewis has established a policy and practice that bans New Afrikan

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culture, history, heritage, tradition, custom and identity. This policy and practice discriminates

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United States District Court
Northern District of California

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against Taylor based upon his New Afrikan race and culture. The policy claims that Taylor’s New

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Afrikan race and cultural tenets constitute Black Guerrilla Family prison gang activity, but no

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evidence supports this claim. The discriminatory policy and practice consists of the confiscation

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of all books, publications and written materials pertaining to the New Afrikan race and cultural

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tenets.

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Pursuant to this policy, Defendants D. Milligan and G. Pimentel conducted a search of

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Taylor’s cell pursuant to a six year review into his status as a member of the Black Guerilla

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Family and confiscated Taylor’s books, manuscripts, pamphlets and other written material related

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to Taylor’s New Afrikan race and cultural tenets. Defendants stated that these writings were gang-

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related material, but they were not used in validating Taylor as an active member of the Black

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Guerilla Family.

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Liberally construed, the SAC appears to allege an Equal Protection claims for damages

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against Milligan and Pimentel for discriminating against Taylor by confiscating his New Afrikan

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written material. Liberally construed, the SAC appear to allege a claim against Warden Lewis, in

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his individual capacity, for establishing a pattern and practice that violates Taylor’s Equal

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Protection rights to be able to read and express views about his racial and cultural beliefs.

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Liberally construed, the SAC also appears to state a claim against Warden Lewis, in his official

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capacity, for establishing a policy and practice that discriminates against Taylor based upon his
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racial/cultural New Afrikan beliefs and practices.
CONCLUSION

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Based on the foregoing, the Court orders as follows:

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1. Taylor’s First Amendment claim against all defendants other than Milligan, Pimentel

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and Lewis is dismissed without leave to amend. The SAC states a cognizable Equal Protection

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claim against Milligan, Pimentel and Lewis.
2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the SAC

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(docket no. 14) and all attachments thereto, and a copy of this Order and the Order of Dismissal

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with Leave to Amend (docket no. 13) to D. Milligan, G. Pimentel and Warden G.D. Lewis in his

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United States District Court
Northern District of California

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individual and official capacities at Pelican Bay State Prison. The Clerk shall also mail a courtesy

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copy of the SAC with all attachments and a copy of this Order and the Order of Dismissal with

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Leave to Amend (docket no. 13) to the California Attorney General’s Office and a copy of this

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Order to Plaintiff.

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3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure require

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them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant

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to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of

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Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of

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such service unless good cause be shown for their failure to sign and return the waiver forms. If

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service is waived, this action will proceed as if Defendants had been served on the date that the

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waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve

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and file an answer before sixty days from the date on which the request for waiver was sent. (This

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allows a longer time to respond than would be required if formal service of summons is

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necessary.)

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Defendants are advised to read the statement set forth at the foot of the waiver form that

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more completely describes the duties of the parties with regard to waiver of service of the

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summons. If service is waived after the date provided in the Notice but before Defendants have

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been personally served, the answer shall be due sixty days from the date on which the request for
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waiver was sent or twenty days from the date the waiver form is filed, whichever is later.
4. The following briefing schedule shall govern dispositive motions in this action:
a. No later than thirty days from the date the answer is due, Defendants shall file a

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motion for summary judgment or other dispositive motion. If Defendants file a motion for

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summary judgment, it shall be supported by adequate factual documentation and shall conform in

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all respects to Federal Rule of Civil Procedure 56. If Defendants are of the opinion that this case

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cannot be resolved by summary judgment, they shall so inform the Court prior to the date the

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summary judgment motion is due. All papers filed with the Court shall be promptly served on

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Plaintiff.

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At the time of filing the motion for summary judgment or other dispositive motion,

United States District Court
Northern District of California

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Defendants shall comply with the Ninth Circuit’s decision in Woods v. Carey, 684 F.3d 934 (9th

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Cir. 2012), and provide Plaintiff with notice of what is required of him to oppose a summary

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judgment motion.

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b. Plaintiff’s opposition to the motion for summary judgment or other dispositive

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motion shall be filed with the Court and served on Defendants no later than twenty-eight days

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after the date on which Defendants’ motion is filed.

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Before filing his opposition, Plaintiff is advised to read the notice that will be provided to

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him by Defendants when the motion is filed, and Rule 56 of the Federal Rules of Civil Procedure

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and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come

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forward with evidence showing triable issues of material fact on every essential element of his

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claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this

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case, he must be prepared to produce evidence in support of those allegations when he files his

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opposition to Defendants’ summary judgment motion. Such evidence may include sworn

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declarations from himself and other witnesses, and copies of documents authenticated by sworn

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declaration. Plaintiff will not be able to avoid summary judgment simply by repeating the

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allegations of his complaint.

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c. Defendants shall file a reply brief no later than fourteen days after the date
Plaintiff’s opposition is filed.
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d. The motion shall be deemed submitted as of the date the reply brief is due. No

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hearing will be held on the motion unless the Court so orders at a later date.
5. Discovery may be taken in this action 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 Local Rule

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6. All communications by Plaintiff with the Court must be served on Defendants, or

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

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Defendants or counsel.
7. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice of

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United States District Court
Northern District of California

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Change of Address,” and must comply with the Court's orders in a timely fashion. Failure to do so

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may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

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Procedure 41(b).

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8. Extensions of time are not favored, though reasonable extensions will be granted. Any

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motion for an extension of time must be filed no later than ten days prior to the deadline sought to

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be extended.
IT IS SO ORDERED.

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Dated:

July 3, 2014
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VINCE CHHABRIA
United States District Judge

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