Gibbs v. Wood et al

Filing 12

ORDER OF SERVICE Dispositive Motion due 91 days from date of service.. Signed by Judge Thelton E. Henderson on 5/4/2016. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 5/5/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNETH GIBBS,

Case No.

15-cv-4115-TEH

Plaintiff,
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v.

ORDER OF SERVICE

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T. WOOD, et. al.,
Defendants.

United States District Court
Northern District of California

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Plaintiff, an inmate at California State Prison-Los Angeles

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County, filed this pro se civil rights action under 42 U.S.C. §

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1983.

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and Plaintiff has filed a second amended complaint.

The amended complaint was dismissed with leave to amend

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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

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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.

28 U.S.C. §

The Court must identify cognizable claims or dismiss

Id. § 1915A(b).

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

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1990).
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.

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

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(1) that a right secured by the

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Plaintiff describes various incidents where he was the
victim of retaliation and excessive force.
“Within the prison context, a viable claim of First

United States District Court
Northern District of California

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Amendment retaliation entails five basic elements:

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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

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that such action (4) chilled the inmate’s exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.”

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567-68 (9th Cir. 2005) (footnote omitted).

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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

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retaliated against for exercising his constitutional rights and

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that the retaliatory action did not advance legitimate

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penological goals, such as preserving institutional order and

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discipline).

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(1) an

Rhodes v. Robinson, 408 F.3d 559,
Accord Pratt v.

“After incarceration, only the unnecessary and wanton

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infliction of pain . . . constitutes cruel and unusual punishment

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forbidden by the Eighth Amendment.”

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312, 319 (1986) (omission in original) (internal quotation marks

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omitted).

Whitley v. Albers, 475 U.S.

Whenever prison officials stand accused of using
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excessive force in violation of the Eighth Amendment, the

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deliberate indifference standard is inappropriate.

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McMillian, 503 U.S. 1, 6 (1992).

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inquiry is whether force was applied in a good-faith effort to

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maintain or restore discipline, or maliciously and sadistically

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to cause harm.

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Hudson v.

Instead, the core judicial

Id. at 6-7; Whitley, 475 U.S. at 320-21.

Plaintiff first argues that Captain Wood transferred

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Plaintiff to a different Administrative Segregation unit in

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retaliation for the filing of a grievance regarding the
Institutional Classification Committee (“ICC”).

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United States District Court
Northern District of California

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construed this states a claim for retaliation.

Liberally

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Plaintiff next argues that Defendant Milton and Royal placed

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him on C status, and it was in retaliation for filing grievances.

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This claim is also sufficient to proceed.

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Plaintiff also argued that Defendant J. Evans used excessive

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force against him causing injuries to his face, nose, and wrist,

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and this was in retaliation because Plaintiff called another

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officer a racist.

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The only allegation against Defendant Lewis is that he released

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Plaintiff from Administrative Segregation.

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claim and Lewis is dismissed from this action with prejudice.

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These claims are also sufficient to proceed.

This fails to state a

III
For the foregoing reasons, the Court hereby orders as
follows:
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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 second amended complaint (Docket No. 11), and a copy

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of this order upon the following Defendants at Pelican Bay State
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Prison: Correctional Captain T. Wood, Correctional Counselor K.

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Royal, Correctional Counselor D. Milton and Correctional Officer

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J. Evans.

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2.

Defendant Lewis is DISMISSED from this action.
In order to expedite the resolution of this case, the

Court orders as follows:

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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

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

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United States District Court
Northern District of California

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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, 953-

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954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d

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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.

Plaintiff must read the attached page headed "NOTICE 4

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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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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

United States District Court
Northern District of California

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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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3.

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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or defendants' counsel.

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4.

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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5.

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.

He also must comply with the court's orders
Failure to do so may result in the
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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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IT IS SO ORDERED.
Dated: 5/4/2016

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________________________
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\CR.15\Gibbs4115.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.

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United States District Court
Northern District of California

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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.
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.

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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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