Wallace v. Ducart

Filing 25

ORDER OF PARTIAL DISMISSAL AND OF SERVICE; GRANTING MOTION FOR SCREENING AND DENYING DEFENDANT DUCARTS MOTION TO DISMISS. Signed by Magistrate Judge Jacqueline Scott Corley on 5/15/2017. (ahm, COURT STAFF) (Filed on 5/15/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GEORGE ELLIS WALLACE,

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Plaintiff,

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v.

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C. E. DUCART, et al.,

United States District Court
Northern District of California

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Defendants.

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Case No.16-cv-03798-JSC

ORDER OF PARTIAL
DISMISSAL AND OF SERVICE;
GRANTING MOTION FOR
SCREENING AND DENYING
DEFENDANT DUCART’S
MOTION TO DISMISS
Re: Dkt. Nos. 18, 24

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INTRODUCTION

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Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C. §
1983 against officials at Pelican Bay State Prison.1 The Court reviewed the complaint pursuant to
28 U.S.C. § 1915A(a), found that it stated a cognizable claim under the First Amendment against
Defendant Warden C.E. Ducart, and ordered the United States Marshal to serve the summons and
complaint upon him. (ECF No. 10.) In the same order, the Court granted Plaintiff leave to file an
amended complaint once he learned the name of the “Doe” defendants. On January 17, 2017,
Ducart filed a motion to dismiss the complaint for failure to state a cognizable claim for relief
against him. On March 22, 2017, Plaintiff filed an opposition to the motion and a First Amended
Complaint naming F. Richards, S. Ramirez, L. Gutierrez, J. Preston, D. Bradbury, and M. Voong,
all of whom are prison officials, as defendants. (ECF Nos. 21, 22.) The next day, Ducart filed a
motion requesting screening of the First Amended Complaint under 28 U.S.C. § 1915A(a). (ECF

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Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). (ECF No. 1 at 4.)

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No. 23.)

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As the original complaint is superseded by the First Amended Complaint, Ducart’s motion

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to dismiss the original complaint is DENIED as moot.2 Ducart’s motion for screening of the First

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Amended Complaint is GRANTED. For the reasons discussed below, service of the summons

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and the First Amended Complaint is ordered upon Defendants Richards, Ramirez and Gutierrez

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and dispositive motions are scheduled. The claims against Defendants Preston, Bradbury and

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Voong are DISMISSED.
STANDARD OF REVIEW

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

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §

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United States District Court
Northern District of California

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1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of

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the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief

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may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id.

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§ 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901

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F.2d 696, 699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the
statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon
which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to
state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to
provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must
be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,
127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to
state a claim for relief that is plausible on its face.” Id. at 1974.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a

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This ruling does not preclude Ducart from raising the arguments for dismissal in a new motion to
dismiss to whatever extent he believes they apply to the First Amended Complaint.
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right secured by the Constitution or laws of the United States was violated, and (2) that the alleged

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violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.

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42, 48 (1988).
LEGAL CLAIMS

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Plaintiff alleges that Defendant F. Richards fired him from his prison job in the kitchen,

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Defendant S. Ramirez confiscated his television and moved him to a different part of the prison,

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and Defendant L. Gutierrez threatened to harm him, all because of Plaintiff’s Muslim faith.

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Plaintiff also alleges that Defendant Ducart was put on notice of this misconduct but failed to

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correct it. Such allegations, when liberally construed, state a cognizable claim against these

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United States District Court
Northern District of California

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Defendants for violating his First Amendment right to freely exercise his religious beliefs and for
the violation of his rights under the Religious Land Use and Institutionalized Persons Act, 42
U.S.C. § 2000cc-1.
Plaintiff alleges that Defendants Preston, Bradbury and Voong did not properly process,
investigate, or grant his administrative appeals of these issues. These allegations, even if true, do
not amount to the violation of the United States Constitution or other federal law because there is
no federal constitutional right to a prison administrative appeal or grievance system. See Ramirez
v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Accordingly, Plaintiff does not state a cognizable
claim for relief under Section 1983 against Defendants Preston, Bradbury and Voong.

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CONCLUSION
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1.

Defendant Ducart’s motion to dismiss is DENIED, and his motion to screen the

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First Amended Complaint is GRANTED.
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2.

The claims against Defendants Preston, Bradbury, and Voong are DISMISSED.

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The Clerk shall issue a summons and Magistrate Judge jurisdiction consent form

and the United States Marshal shall serve, without prepayment of fees, the summons, Magistrate
Judge jurisdiction consent form, a copy of the First Amended Complaint with attachments, and a
copy of this order on Correctional Officer F. Richards, Correctional Officer S. Ramirez, and
Correctional Officer L. Gutierrez at Pelican Bay State Prison.
The Clerk shall also mail a courtesy copy of the Magistrate Judge jurisdiction consent form

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to the California Attorney General’s Office.
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Defendants Richards, Ramirez and Gutierrez shall complete and file the Magistrate

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Judge jurisdiction consent form within the deadline provided on the form. He shall also file an

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answer in accordance with the Federal Rules of Civil Procedure.
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To expedite the resolution of this case:
a. No later than 91 days from the date this order is issued, Defendants shall file a

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motion for summary judgment or other dispositive motion. The motion shall be supported by

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adequate factual documentation and shall conform in all respects to Federal Rule of Civil

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Procedure 56, and shall include as exhibits all records and incident reports stemming from the

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United States District Court
Northern District of California

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events at issue. If Defendants are of the opinion that this case cannot be resolved by summary
judgment, they shall so inform the Court prior to the date the summary judgment motion is due.
All papers filed with the Court shall be promptly served on Plaintiff.
b. At the time the dispositive motion is served, Defendants shall also serve, on a

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separate paper, the appropriate notice required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th
Cir. 1998) (en banc). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012).
c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the

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Court and served upon Defendants no later than 28 days from the date the motion is filed.
Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him

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pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc).
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d. Defendants shall file a reply brief no later than 14 days after the opposition is
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filed.
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e. The motion shall be deemed submitted as of the date the reply brief is due. No
hearing will be held on the motion unless the Court so orders at a later date.
IT IS SO ORDERED.
Dated: May 15, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If Defendants move for summary judgment, they are seeking to have your case dismissed.

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A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if
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granted, end your case.
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Rule 56 tells you what you must do in order to oppose a motion for summary judgment.
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United States District Court
Northern District of California

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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 Defendant's declarations and documents and show that there is a genuine issue of

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material fact for trial. If you do not submit your own evidence in opposition, summary judgment,

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if appropriate, may be entered against you. If summary judgment is granted, your case will be

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dismissed and there will be no trial.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GEORGE ELLIS WALLACE,

Case No. 16-cv-03798-JSC

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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C. E. DUCART, et al.,
Defendants.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on May 15, 2017, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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George Ellis Wallace ID: Prisoner Id AF8343
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532

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Dated: May 15, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ada Means, Deputy Clerk to the
Honorable JACQUELINE SCOTT CORLEY
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