Crawford v. Beard

Filing 36

ORDER SCREENING SECOND AMENDED COMPLAINT; DENYING MOTION FOR ORDER DIRECTING DEFENDANTS TO FILE ANSWER. Signed by Magistrate Judge Maria-Elena James on 5/17/2016. (Attachments: # 1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 5/17/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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No. C 14-5578 MEJ (PR)

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JAMES DARREN CRAWFORD,
Plaintiff,
v.

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For the Northern District of California

United States District Court

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ORDER SCREENING SECOND
AMENDED COMPLAINT; DENYING
MOTION FOR ORDER DIRECTING
DEFENDANTS TO FILE ANSWER

JEFFREY BEARD, et al.,
Defendants.

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Docket No. 32

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INTRODUCTION

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Plaintiff, a California state prisoner currently incarcerated at Calipatria State Prison

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18 and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, complaining
19 of civil rights violations at Pelican Bay State Prison (“PBSP”), where he was previously
20 housed. Plaintiff’s second amended complaint (Docket No. 29) is currently before the Court
21 for review pursuant to 28 U.S.C. § 1915A. Also pending before the Court is Plaintiff’s
22 motion for an order directing Defendants to file an answer to his second amended complaint
23 (Docket No. 32).
DISCUSSION

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25 A.

Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners

27 seek redress from a governmental entity or officer or employee of a governmental entity. 28
28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss
any claims which are frivolous, malicious, fail to state a claim upon which relief may be

1 granted, or seek monetary relief from a defendant who is immune from such relief. 28
2 U.S.C. § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.
3 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of

5 the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific
6 facts are not necessary; the statement need only ‘“give the defendant fair notice of what the .
7 . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
8 (citations omitted). Although a complaint “does not need detailed factual allegations [in
9 order to state a complaint], . . . a plaintiff’s obligation to provide the grounds of his

11 of the elements of a cause of action will not do. . . . Factual allegations must be enough to
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10 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation

12 raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
13 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim
14 for relief that is plausible on its face.” Id. at 570.
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

16 elements: (1) that a right secured by the Constitution or laws of the United States was
17 violated, and (2) that the alleged deprivation was committed by a person acting under the
18 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
19 B.

Second Amended Complaint

20

The second amended complaint completely replaces all prior complaints. Ferdik v.

21 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). In his second amended complaint, Plaintiff
22 alleges that PBSP officials have violated his First Amendment rights by obstructing his
23 incoming and outgoing mail in retaliation for his writings criticizing the CDCR, and in
24 retaliation for Plaintiff’s use of the prison grievance system. Docket No. 29 (“SAC”) at 1–2.
25 Plaintiff’s claims fall into five categories, which the Court addresses in turns below.
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1.

Legal Claims
a.

First Amendment Right to Send Mail

Plaintiff alleges that PBSP officials violated his First Amendment right to free speech
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1 by failing to send out his mail in three separate instances, which are the bases for his first
2 three causes of action.1
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Plaintiff states that PBSP processes outgoing mail as follows. A prisoner submits his

4 mail to a correctional officer in his assigned housing unit, who forwards it to the Institutional
5 Gang Investigations Unit (“IGI”) for screening. If the mail is not disallowed, IGI forwards
6 the mail to the PBSP mailroom for delivery to the United States Postal Service. Money is
7 removed from the prisoner’s trust account to pay for the price of postage. If IGI determines
8 that the mail is disallowed, prison regulations require that the IGI notify the prisoner that the
9 mail has been confiscated by issuing a stopped mail notification (CDCR Form 1819) to the

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10 prisoner. See SAC at 8–9.
On November 24 and December 5, 2013, and on January 2, 2014, Plaintiff sent mail to

12 Mary Ratcliff. See SAC at 9–17. The mailings included copies of articles authored by
13 Plaintiff that criticized CDCR policies and practices. See id. Ratcliff never received the
14 mailings. See id. Plaintiff concludes that his mail was deliberately confiscated by the IGI in
15 retaliation for his writings criticizing the CDCR. In support of this conclusion, Plaintiff
16 makes the following allegations: Plaintiff never received a stopped mail notification;
17 Plaintiff’s trust account was not debited for postage; Plaintiff’s mail went missing three times
18 within a 40-day period; and the missing mail contained articles critical of CDCR that were
19 intended for publication. See id. IGI officers Sergeant Countess and Officer Burris are
20 responsible for monitoring all of Plaintiff’s incoming and outgoing mail; and IGI officer Lt.
21 Frisk is responsible for investigating criminal activities in the PBSP SHU and for hearing
22 administrative appeals at the second level of review. See id. at 6–7. Plaintiff alleges that
23 Sergeant Countess, Officer Burris, and Lt. Frisk “knew or should have known” that
24 Plaintiff’s outgoing and incoming mail were being unlawfully obstructed. See id. He also
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1

Plaintiff also discusses a fourth instance where prison officials delayed sending out his
27 November 2013 mailings to Penny Schoner and Anthony Rayson. SAC at at 29–34. However,
he does not allege that the delayed sending of these pieces of mail violated his First Amendment
28 right to free speech; rather, he challenges the cancellation of the related grievance in his eleventh
cause of action. Id. at 53–55.
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1 alleges that Sergeant Countess, Officer Burris, and Lt. Frisk failed to correct the other
2 defendants’ behavior. See id.
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Prisoners enjoy a First Amendment right to send and receive mail. See Witherow v.

4 Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407
5 (1989)). A prison may adopt regulations or practices which impinge on a prisoner’s First
6 Amendment rights as long as the regulations are “reasonably related to legitimate penological
7 interests.” See Turner v. Safley, 482 U.S. 78, 89 (1987). Liberally construed, Plaintiff’s
8 allegations plausibly support an inference that Sergeant Countess and Officer Burris
9 confiscated or destroyed Plaintiff’s mail without justification in violation of his First

11 (courts “have an obligation where the petitioner is pro se, particularly in civil rights cases, to
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10 Amendment right to send mail, see Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)

12 construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”), and
13 that Lt. Frisk failed to properly train or supervise Sergeant Countess and Officer Burris,
14 thereby proximately causing the First Amendment violation, see Ybarra v. Reno Thunderbird
15 Mobile Home Village, 723 F.2d 675, 680 (9th Cir. 1984) (liability under Section 1983 if
16 prison official, in a supervisory capacity, failed to properly train or supervise personnel
17 resulting in the alleged deprivation).
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b.

First Amendment Right to Receive Mail

Plaintiff alleges that his First Amendment right to free speech was violated when two

20 pieces of mail were not delivered to him.
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1)

December 2013 mailing from Michael Roe

In the first instance, which is the basis for Plaintiff’s fourth cause of action, Plaintiff

23 did not receive a December 2013 mailing from Michael Roe. The Roe mailing was
24 addressed to James Harvey (another inmate), but also listed Mutope Duguma, Plaintiff’s New
25 Afrikan adopted name, and Plaintiff’s CDCR identification number. SAC at 18. The mailing
26 was delivered to Harvey, who informed Correctional Officer Wahlbeck that it was intended
27 for Plaintiff. See id. at 17–18. Officer Wahlbeck routed the mailing to Plaintiff, but Plaintiff
28 never received the mailing. See id. at 18. The PBSP mailroom denied returning the mailing
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1 to Roe, and Roe states that the mailing was not returned to him. See id. at 19 and 23.
2 Plaintiff concludes that unidentified PBSP IGI officials deliberately discarded his mail to
3 “cover[] malfeasance and discourag[e] prisoners from pursuing redress for their grievances.”
4 See id. at 19. Plaintiff submitted an inmate request form to inquire about the whereabouts of
5 this mailing. See id. at 18. At the second level response to the inmate request form, Sgt. Hall
6 stated that the mailing was improperly addressed; that the mailing was believed to be sent
7 back to sender via the mailroom by another unknown staff member; and that because the
8 intended recipient of the mailing was unknown, there was no need to issue a Stopped Mail
9 Notification to Plaintiff. See Docket No. 29-2 at 58. Plaintiff alleges that Sgt. Hall’s

11 Sgt. Hall lied about the mailing being returned to Roe. See SAC at 18–19, 43. Plaintiff
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10 response indicated that Sgt. Hall had “personal knowledge of the confiscated mail” and that

12 alleges that prison officials engaged in an unofficial policy of discarding mailings intended
13 for prisoners that were either disliked by prison officials or that were engaged in activities
14 considered detrimental to the debriefing program. See id. at 19. Plaintiff alleges that Sgt.
15 Hall violated Plaintiff’s First Amendment rights to receive mail because Sgt. Hall
16 deliberately encouraged this unofficial policy in order to chill Plaintiff’s freedom of speech.
17 See id. at 19 and 43.
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This claim was previously dismissed with leave to amend because Plaintiff’s

19 allegations regarding Sgt. Hall’s liability were speculative and conclusory, failed to establish
20 a custom or policy, and failed to establish how Sgt. Hall had failed to supervise his
21 subordinates. Docket No. 15 at 6–7. The Court finds that Plaintiff has failed to correct these
22 deficiencies. Plaintiff’s allegation of a single instance of Plaintiff’s mail not being delivered
23 fails to state a custom or policy of deliberately discarding mail intended for prisoners who
24 protest conditions of confinement. Moreover, Plaintiff’s allegation that Sgt. Hall knew of
25 such a policy is purely conclusory. Sgt. Hall’s response does not imply any knowledge of
26 prison officials unlawfully discarding Plaintiff’s mailing from Roe. Rather, Sgt. Hall’s
27 response restates facts provided by Officer Wahlbeck on the request form, and speculates as
28 to the whereabouts of Plaintiff’s mailing from Roe. Plaintiff has failed to plead allegations
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1 against Sgt. Hall that “raise a right to relief above the speculative level.” Bell Atlantic Corp.,
2 550 U.S. at 555. Accordingly, the claim against Sgt. Hall is DISMISSED with prejudice.
3 See, e.g., Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009)
4 (affirming dismissal without leave to amend where court advised plaintiff of pleading
5 deficiencies but plaintiff failed to correct those deficiencies in amended pleading).
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2)

January 28, 2014 stop of the San Francisco Bay View

In the second instance, which is the basis for Plaintiff’s fifth cause of action, on

8 January 28, 2014, Defendant Frisk stopped a copy of the San Francisco Bay View newspaper
9 from reaching Plaintiff because a personal handwritten note to Plaintiff was concealed within

11 Patton. See id. Plaintiff alleges that the note was from the newspaper editor referring
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10 the pages of the newspaper. SAC at 25–26. The stop action was approved by Defendant

12 Plaintiff to a specific article, and that these types of notes are not prohibited by CDCR
13 regulations. See id. Plaintiff alleges that Lt. Frisk and Capt. Patton’s confiscation of the San
14 Francisco Bay View violated his First Amendment right to receive mail. See id. at 44.
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As discussed supra, a prison may adopt regulations or practices which impinge on a

16 prisoner’s First Amendment rights as long as the regulations are “reasonably related to
17 legitimate penological interests.” See Turner, 482 U.S. at 89. The Turner standard applies to
18 regulations and practices concerning incoming mail received by prisoners from non19 prisoners. See Thornburgh, 490 U.S. at 413. Liberally construed, the Court finds that
20 Plaintiff has stated a cognizable claim against Defendants Frisk and Patton for a First
21 Amendment violation of his right to receive mail.
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c.

First Amendment Retaliation

Plaintiff sets forth three First Amendment retaliation claims, relying on the same facts

24 used to support his First Amendment claims based on the right to send mail.2 Plaintiff claims
25 that Defendants Burris, Countess, and Frisk interfered with his mail in retaliation for
26 Plaintiff’s engaging in protected speech with media outlets and political groups. Plaintiff
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These claims are his sixth, seventh, and eighth causes of action. See SAC at 44–49.
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1 notes that the mailings to Mary Ratcliff contained articles authored by Plaintiff that were
2 critical of CDCR.
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“Within the prison context, a viable claim of First Amendment retaliation entails five

4 basic elements: (1) An assertion that a state actor took some adverse action against an inmate
5 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the
6 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably
7 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.
8 2005) (footnote omitted). The Court finds that, liberally construed, Plaintiff’s allegations
9 regarding his outgoing mail to Mary Ratcliff sent on November 24, 2013; December 5, 2013;

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10 and January 2, 2014, state cognizable retaliation claims.

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d.

First Amendment Right to Petition the Government for Redress

Plaintiff alleges that Defendants Bramucci, Bond, Ducart, Hodges, Allen, and Zamora

13 violated his First Amendment right to petition the government for redress of grievances when
14 they cancelled the following grievances: his grievance challenging the above-referenced
15 confiscation of the San Francisco Bay View; his grievance challenging the above-referenced
16 return or confiscation of his mailing from Michael Roe; and his grievance challenging the
17 delay of outgoing mail sent by Plaintiff to Penny Schoner and Anthony Rayson.3 Plaintiff
18 contends that prison officials deliberately ignored evidence that Plaintiff had complied with
19 prison regulations in cancelling his grievances. Plaintiff argues that these cancellations
20 violated his First Amendment right because they denied him the ability to successfully obtain
21 relief and prevented him from meeting the exhaustion requirement of the Prison Litigation
22 Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”).
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Under the First Amendment, prisoners have the right to access the courts and the right

24 to petition the government for a redress of grievances. See Bounds v. Smith, 430 U.S. 817,
25 821 (1977). The right of meaningful access to the courts extends to established prison
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These claims are his ninth, tenth, and eleventh causes of action. See SAC at 51–55.
28 Defendant Allen is only named in the tenth cause of action, while Bramucci, Bond, Ducart,
Hodges, and Zamora are named in the ninth, tenth, and eleventh causes of action.
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1 grievance procedures. Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) overturned on
2 other grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001)); accord Hines v. Gomez,
3 853 F. Supp. 329, 331–32 (N.D. Cal. 1994). However, as discussed in the Court’s order
4 screening Plaintiff's first amended complaint, to establish a violation of the right of access to
5 the courts, a prisoner must establish that he has suffered an “actual injury” as a result of a
6 prison official’s misconduct. See Docket No. 15 at 8 (citing Lewis v. Casey, 518 U.S. 343,
7 351–52 (1996)). An “actual injury” exists where a prisoner has been “hindered [in his]
8 efforts to pursue a legal claim.” Id. at 351; see also Silva v. Vittorio, 658 F.3d 1090,
9 1102–03 (9th Cir. 2010) (recognizing that access-to-courts claim requires an actual injury to

11 n.6 (9th Cir. 2015). Plaintiff has not alleged in the SAC that his claims have been dismissed
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10 court access), overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209

12 for failure to exhaust or that he has otherwise been unable to present his claims. See id. at
13 348. In addition, although there is a First Amendment right to petition the government for
14 redress of grievances, there is no right to a response or any particular action. See Flick v.
15 Alba, 932 F.2d 728, 729 (8th Cir. 1991) (“prisoner’s right to petition the government for
16 redress . . . is not compromised by the prison’s refusal to entertain his grievance.”). Plaintiff
17 was afforded an opportunity to amend this claim to correct the identified deficiency, but has
18 failed to do so. Plaintiff’s claims that Defendants Bramucci, Bond, Ducart, Hodges, Allen,
19 and Zamora violated his First Amendment right to petition the government for redress of
20 grievances are DISMISSED with prejudice.
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e.

42 U.S.C. § 1983 Conspiracy

Plaintiff claims that Defendants Williams, Love, Bell, Ducart, Hodges, and Zamora

23 conspired to cover up their First Amendment violations, conspired to discourage Plaintiff
24 publishing articles critical of the CDCR, and conspired to discourage Plaintiff from
25 submitting prison grievances. A conspiracy under 42 U.S.C. § 1983 is “a conspiracy to
26 deprive a plaintiff of a constitutional or federally protected right under color of state law.”
27 Dixon v. City of Lawton, 898 F.2d 1443, 1449 n.6 (10th Cir. 1990). To state a claim for
28 conspiracy under 42 U.S.C. § 1983, a plaintiff must plead specific facts showing an
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1 agreement or meeting of minds between the defendants to violate his constitutional rights.
2 Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th Cir. 1989). Because a conspiracy
3 claim under 42 U.S.C. § 1983 requires proof of subjective intent, it is subject to a heightened
4 pleading standard. Turner v. County of Los Angeles, 18 Fed. App’x 592, 596 (9th Cir. 2001)
5 (citing Branch v. Tunnell, 937 F.2d 1382, 1386 (9th Cir. 1991) and Buckey v. County of Los
6 Angeles, 968 F.2d 791, 794 (9th Cir. 1992)).
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Plaintiff pled a similar conspiracy claim in his first amended complaint, which the

8 Court dismissed for failing to allege specific facts containing evidence of unlawful intent or
9 of a meeting of the minds between Defendants Williams, Love, Bell, Ducart, Hodges and

11 fails to correct this deficiency. Plaintiff argues that the reliance of Love, Bell, Ducart,
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10 Zamora. Docket No.15 at 9. The conspiracy claim as pled in the second amended complaint

12 Hodges, and Zamora upon Williams’ incorrect statement that he had been assessed mailing
13 charges for the missing mailings constitutes evidence of an agreement that these defendants
14 conspired to violate his constitutional rights. SAC at 12–13 and Docket No. 29-2 at 12–15
15 and 27–28. This assertion, without more, fails to show an agreement or to meet the
16 particularized factual requirement for conspiracy claims. Moreover, Plaintiff has attached
17 documents to his complaint that contradict his claim that Warden Ducart refused to
18 investigate his claims. In a later-filed grievance, PBSP prison officials investigated
19 Plaintiff’s claims and agreed that Plaintiff had not been assessed mailing charges for the
20 missing mailings. Docket No. 29-2 at 34–36.
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Plaintiff’s allegations that Williams, Love, Bell, Ducart, Hodges, and Zamora have

22 conspired to violate his constitution rights fail to “raise a right to relief above the speculative
23 level.” Bell Atlantic Corp., 550 U.S. at 555. Moreover, Plaintiff’s allegation of conspiracy is
24 contradicted by his complaint. Accordingly, the conspiracy claim is DISMISSED with
25 prejudice. See, e.g., Zucco Partners, 552 F.3d at 1007.
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2.

Additional Defendants
a.

Defendant D. Gongora

Plaintiff again names Correctional Officer D. Gongora as a defendant. See SAC at 7.
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1 He identifies Gongora as “a member of the Security Squad and assigned to the IGI.” See id.
2 Plaintiff does not name Gongora in any cause of action.
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In the Court’s earlier order screening the first amended complaint, the Court dismissed

4 Gongora from the action by granted leave to amend to specify what constitutional right
5 Gongora violated and how Gongora violated that right. Plaintiff has failed to correct this
6 deficiency.
7

Similar to the first amended complaint, Plaintiff alleges that Gongora’s responsibilities

8 include screening and processing prisoner mail, and that Gongora “knew or should have
9 known of the wanton, insidious, and unlawful obstruction and confiscation of Plaintiff’s

11 factual allegation regarding Gongora is as follows: Plaintiff submitted an inmate request for
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10 incoming and outgoing mail for reasons of retaliation.” SAC at 7. Plaintiff’s only specific

12 interview to Gongora in an unrelated matter. Gongora’s failure to respond to the request
13 limited Plaintiff’s ability to produce documents necessary to successfully challenge the
14 rejection of his appeal regarding the Roe mailing. See id. at 21.
15

Plaintiff has not identified what constitutional right Gongora violated and how

16 Gongora violated that right. His conclusory allegation that Gongora knew or should have
17 known of the alleged First Amendment violations is insufficient to “raise a right to relief
18 above the speculative level.” Bell Atlantic Corp., 550 U.S. at 555. Accordingly, Gongora is
19 DISMISSED with prejudice from the action and terminated as a defendant.
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b.

Doe Defendants

The use of Doe defendants is not favored in the Ninth Circuit. See Gillespie v.

22 Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, where the identity of alleged
23 defendants cannot be known prior to the filing of a complaint the plaintiff should be given an
24 opportunity through discovery to identify them. Id. Failure to afford the plaintiff such an
25 opportunity is error. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).
26 Accordingly, the claims against Defendants John Doe(s) 1–10 are DISMISSED from this
27 action without prejudice. Should Plaintiff learn the identity of these Doe defendants through
28 discovery, he may move to file an amended complaint to add them as named defendants. See
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1 Brass v. County of Los Angeles, 328 F.3d 1192, 1195–98 (9th Cir. 2003).
2 C.
3
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Motion for Order Directing Defendants to Reply to the Second Amended
Complaint
Plaintiff has filed a motion requesting that the Court order Defendants to reply to the

5 second amended complaint. Docket No. 32. This motion is DENIED. The parties should
6 follow the briefing schedule set forth below.
7

CONCLUSION

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For the foregoing reasons, the Court hereby orders as follows:

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1.

The Court finds that the second amended complaint states the following

11 Burris, Countess, and Frisk (first, second and third causes of action); violation of the First
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10 cognizable claims: violation of the First Amendment right to send mail against Defendants

12 Amendment right to receive mail against Defendants Frisk and Patton (fifth cause of action);
13 First Amendment retaliation claim against Burris, Countess, and Frisk (sixth, seventh, and
14 eighth causes of action). The second amended complaint is the operative complaint and
15 supersedes all prior complaints.
16

2.

The following claims are DISMISSED with prejudice: the First Amendment

17 claim against Sgt. Hall (fourth cause of action); the First Amendment claim against
18 Bramucci, Bond, Ducart, Hodges, Allen and Zamora (ninth, tenth, and eleventh causes of
19 action); and his 42 U.S.C. § 1983 conspiracy claim against Williams, Love, Bell, Ducart,
20 Hodges and Zamora (twelfth cause of action). Hall, Bramucci, Bond, Ducart, Hodges, Allen,
21 Zamora, Williams, Love, and Bell are TERMINATED from this action.
22

3.

Defendant D. Gongora is TERMINATED from this action.

23

4.

Defendants John Doe(s) 1–10 are DISMISSED from this action without

24 prejudice. Should Plaintiff learn the identity of these Doe defendants through discovery, he
25 may move to file an amended complaint to add them as named defendants.
26

5.

The Court’s prior briefing schedule is VACATED. In order to expedite the

27 resolution of this case, the Court orders as follows:
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a.

No later than 91 days from the date this order is filed, Defendants must
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1 file and serve a motion for summary judgment or other dispositive motion. A motion for
2 summary judgment also must be accompanied by a Rand notice so that Plaintiff will have
3 fair, timely and adequate notice of what is required of him in order to oppose the motion.
4 Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v.
5 Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with motion for
6 summary judgment).4
7

If Defendants are of the opinion that this case cannot be resolved by summary

8 judgment, Defendants must so inform the Court prior to the date the motion is due.
9

b.

Plaintiff’s opposition to the summary judgment or other dispositive

11 the date the motion is filed. Plaintiff must bear in mind the notice and warning regarding
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10 motion must be filed with the Court and served upon Defendants no later than 28 days from

12 summary judgment provided later in this order as he prepares his opposition to any motion
13 for summary judgment.
14

c.

Defendants shall file a reply brief no later than 14 days after the date the

15 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is
16 due. No hearing will be held on the motion.
17

6.

Plaintiff is advised that a motion for summary judgment under Rule 56 of the

18 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you
19 must do in order to oppose a motion for summary judgment. Generally, summary judgment
20 must be granted when there is no genuine issue of material fact — that is, if there is no real
21 dispute about any fact that would affect the result of your case, the party who asked for
22 summary judgment is entitled to judgment as a matter of law, which will end your case.
23
24
4
If Defendants assert that Plaintiff failed to exhaust his available administrative remedies
25 as required by 42 U.S.C. § 1997e(a), Defendants must raise such argument in a motion for
summary judgment, pursuant to the Ninth Circuit’s recent opinion in Albino v. Baca, 747 F.3d
26 1162 (9th Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
2003), which held that failure to exhaust available administrative remedies under the Prison
27 Litigation Reform Act, should be raised by a defendant as an unenumerated Rule 12(b) motion).
Such a motion should also incorporate a modified Wyatt notice in light of Albino. See Wyatt
28 v. Terhune, 315 F.3d 1108, 1120, n.14 (9th Cir. 2003); Stratton v. Buck, 697 F.3d 1004, 1008
(9th Cir. 2012).

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1 When a party you are suing makes a motion for summary judgment that is properly supported
2 by declarations (or other sworn testimony), you cannot simply rely on what your complaint
3 says. Instead, you must set out specific facts in declarations, depositions, answers to
4 interrogatories, or authenticated documents, as provided in Rule 56(c), that contradict the
5 facts shown in the Defendants’ declarations and documents and show that there is a genuine
6 issue of material fact for trial. If you do not submit your own evidence in opposition,
7 summary judgment, if appropriate, may be entered against you. If summary judgment is
8 granted, your case will be dismissed and there will be no trial. Rand v. Rowland, 154 F.3d
9 952, 962–63 (9th Cir. 1998) (en banc) (App. A).5
7.

All communications by Plaintiff with the Court must be served on Defendants’

11 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may
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10

12 disregard any document which a party files but fails to send a copy of to his opponent. Until
13 Defendants’ counsel has been designated, Plaintiff may mail a true copy of the document
14 directly to Defendants, but once Defendants are represented by counsel, all documents must
15 be mailed to counsel rather than directly to Defendants.
16

8.

Discovery may be taken in accordance with the Federal Rules of Civil

17 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local
18 Rule 16 is required before the parties may conduct discovery.
19

9.

Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep

20 the Court informed of any change of address and must comply with the Court’s orders in a
21 timely fashion. Failure to do so may result in the dismissal of this action for failure to
22 prosecute pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of
23 change of address in every pending case every time he is moved to a new facility.
24

10.

Any motion for an extension of time must be filed no later than the deadline

25 sought to be extended and must be accompanied by a showing of good cause.
26

11.

Plaintiff is cautioned that he must include the case name and case number for

27
28

5

The Rand notice provided herein does not excuse Defendants’ obligation to serve said
notice again concurrently with a motion for summary judgment. Woods, 684 F.3d at 939.
13

1 this case on any document he submits to the Court for consideration in this case.
2

IT IS SO ORDERED.

3
4 DATED:

May 17, 2016

Maria-Elena James
United States Magistrate Judge

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For the Northern District of California

United States District Court

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