de Cruz v. Panizza

Filing 29

ORDER REOPENING CASE AND FOR SERVICE Defendant's Dispositive Motion due by 5/11/2017.. Signed by Judge Thelton E. Henderson on 2/9/2017. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 2/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GERALD DEAN de CRUZ,

Case No.

15-cv-1930-TEH

Plaintiff,
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v.

ORDER TO REOPEN AND FOR
SERVICE

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A. PANIZZA,
Defendant.

United States District Court
Northern District of California

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Plaintiff, an inmate at San Quentin State Prison, filed this

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pro se civil rights action under 42 U.S.C. § 1983.

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dismissed and closed at screening, but Plaintiff filed an appeal.

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The Ninth Circuit affirmed in part, vacated in part, and remanded

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the case.

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the access to courts claim but remanded the case to consider

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Plaintiff’s allegation that Defendant improperly opened and read

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his legal mail.

The case was

The Circuit found that the Court properly dismissed

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I

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Federal courts must engage in a preliminary screening of

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cases in which prisoners seek redress from a governmental entity

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or officer or employee of a governmental entity.

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1915A(a).

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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

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relief may be granted,” or “seeks monetary relief from a

28 U.S.C. §

The court must identify cognizable claims or dismiss

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defendant who is immune from such relief.”

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Pleadings filed by pro se litigants, however, must be liberally

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construed.

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Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir.

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1990).

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Id. § 1915A(b).

Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010);

To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements:

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

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that the alleged violation was committed by a person acting under

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the color of state law.

United States District Court
Northern District of California

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(1) that a right secured by the

West v. Atkins, 487 U.S. 42, 48 (1988).
II

Plaintiff alleges that his legal mail was opened and
possibly read outside of his presence.
"Legal mail" may not be read or copied without the

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prisoner's permission.

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(9th Cir. 1994), rev'd on other grounds, 518 U.S. 343 (1996).

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The Ninth Circuit has emphasized that there is a clear difference

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between inspecting outgoing legal mail for contraband and reading

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it under Wolff v. McDonnell, 418 U.S. 539, 577 (1974), such that

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prison officials may not circumvent this prohibition by reading

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an inmate’s outgoing legal mail in his presence because this

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practice does not ameliorate the chilling effect on the inmate’s

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Sixth Amendment rights.

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(9th Cir. 2014) (reversing district court’s dismissal of the

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complaint for failure to state a claim after finding complaint

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stated a cognizable 6th Amendment claim based on prisoner’s

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allegations that prison officials read his legal mail, that they

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claimed entitlement to do so, and his right to private

See Casey v. Lewis, 43 F.3d 1261, 1269

See Nordstrom v. Ryan, 762 F.3d 903, 911

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consultation with counsel was chilled).

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officials may establish that legitimate penological interests

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justify the policy or practice.

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F.3d 322, 327 (9th Cir. 1996).

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But again, prison

See O'Keefe v. Van Boening, 82

Plaintiff alleges that one of his legal boxes was delivered

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and was nearly empty of its contents in that all of his legal

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papers, confidential correspondence from attorneys, and exhibits

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were taken out of the envelopes and strewn about.

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Defendant may have read the mail and many items were missing.

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Liberally construed, these allegations are sufficient to proceed.

United States District Court
Northern District of California

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He states that

III
For the foregoing reasons, the Court hereby orders as
follows:
1.

The Order of Dismissal (Docket No. 14) is VACATED and

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the case is REOPENED.

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Defendant opened and read Plaintiff’s confidential legal mail.

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All other claims are dismissed.

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2.

The action continues on the claim that

The Clerk of the Court shall issue summons and the

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United States Marshal shall serve, without prepayment of fees, a

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copy of the amended complaint (Docket No. 13), and a copy of this

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order upon the following Defendant A. Panizza, a

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correctional/property officer at San Quentin State Prison.

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3.

In order to expedite the resolution of this case, the

Court orders as follows:
a.

No later than 91 days from the date of service,

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Defendants shall file a motion for summary judgment or other

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dispositive motion.

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factual documentation and shall conform in all respects to

The motion shall be supported by adequate

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Federal Rule of Civil Procedure 56, and shall include as exhibits

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all records and incident reports stemming from the events at

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issue.

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resolved by summary judgment, he shall so inform the Court prior

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to the date his summary judgment motion is due.

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with the Court shall be promptly served on the plaintiff.

If Defendant is of the opinion that this case cannot be

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b.

All papers filed

At the time the dispositive motion is served,

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Defendants shall also serve, on a separate paper, the appropriate

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notice or notices required by Rand v. Rowland, 154 F.3d 952, 953954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d

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United States District Court
Northern District of California

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1108, 1120 n. 4 (9th Cir. 2003).

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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

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dismiss for nonexhaustion is filed, not earlier); Rand at 960

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(separate paper requirement).

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c.

See Woods v. Carey, 684 F.3d

Plaintiff's opposition to the dispositive motion,

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if any, shall be filed with the Court and served upon Defendants

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no later than thirty days from the date the motion was served

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upon him.

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- WARNING," which is provided to him pursuant to Rand v. Rowland,

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154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v.

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

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Plaintiff must read the attached page headed "NOTICE -

If Defendants file a motion for summary judgment claiming

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that Plaintiff failed to exhaust his available administrative

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remedies as required by 42 U.S.C. § 1997e(a), plaintiff should

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take note of the attached page headed "NOTICE -- WARNING

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(EXHAUSTION)," which is provided to him as required by Wyatt v.

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Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).
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d.

If Defendant wishes to file a reply brief, he shall

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do so no later than fifteen days after the opposition is served

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upon him.

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e.

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the reply brief is due.

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unless the court so orders at a later date.

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4.

The motion shall be deemed submitted as of the date
No hearing will be held on the motion

All communications by Plaintiff with the court must be

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served on defendant, or defendant’s counsel once counsel has been

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designated, by mailing a true copy of the document to defendants

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United States District Court
Northern District of California

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or defendants' counsel.
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Discovery may be taken in accordance with the Federal

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Rules of Civil Procedure.

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Rule of Civil Procedure 30(a)(2) is required before the parties

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may conduct discovery.

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6.

No further court order under Federal

It is Plaintiff's responsibility to prosecute this case.

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Plaintiff must keep the court informed of any change of address

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by filing a separate paper with the clerk headed “Notice of

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Change of Address.”

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in a timely fashion.

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dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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He also must comply with the court's orders
Failure to do so may result in the

IT IS SO ORDERED.
Dated: 2/9/2017

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________________________
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\CR.15\Dean1930.serve.docx

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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. A motion for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure will, if granted,
end your case.
Rule 56 tells you what you must do in order to oppose a
motion for summary judgment. Generally, summary judgment must be
granted when there is no genuine issue of material fact--that is,
if there is no real dispute about any fact that would affect the
result of your case, the party who asked for summary judgment is
entitled to judgment as a matter of law, which will end your
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 complaint
says. Instead, you must set out specific facts in declarations,
depositions, answers to interrogatories, or authenticated
documents, as provided in Rule 56(e), that contradict the facts
shown in the defendant’s declarations and documents and show that
there is a genuine issue of material fact for trial. If you do
not submit your own evidence in opposition, summary judgment, if
appropriate, may be entered against you. If summary judgment is
granted, your case will be 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 exhaust your administrative
remedies. Such evidence may be in the form of declarations
(statements signed under penalty of perjury) or authenticated
documents, that is, documents accompanied by a declaration
showing where they came from and why they are authentic, or other
sworn papers, such as answers to interrogatories or depositions.
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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