Adams v. Azevedo

Filing 9

ORDER OF SERVICE. Habeas Answer or Dispositive Motion due by 11/6/2017. Signed by Judge Charles R. Breyer on 8/4/2017. (Attachments: # 1 Certificate/Proof of Service)(lsS, COURT STAFF) (Filed on 8/4/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 KASEEM ADAMS, P35154, Plaintiff(s), 10 v. 11 12 J. AZEVEDO, Correctional Officer, Defendant(s). 13 ) ) ) ) ) ) ) ) ) ) No. C 17-2043 CRB (PR) ORDER OF SERVICE 14 15 Plaintiff, a state prisoner currently incarcerated at the Deuel Vocational 16 Institution (DVI) in Tracy,1 has filed a pro se complaint for damages under 42 17 U.S.C. § 1983 alleging that on November 14, 2015, while plaintiff was 18 incarcerated at San Quentin State Prison (SQSP), Correctional Officer J. Azevedo 19 falsely charged plaintiff with battery on staff in retaliation for plaintiff 20 threatening to file a staff complaint against Azevedo for sexual harassment. 21 22 23 DISCUSSION A. Standard of Review Federal courts must engage in a preliminary screening of cases in which 24 prisoners seek redress from a governmental entity or officer or employee of a 25 governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable 26 1 27 28 The clerk is instructed to update the docket to reflect plaintiff’s current mailing address: Kaseem Adams, P35154, DVI, P.O. Box 600, Tracy, CA 953780600. 1 claims or dismiss the complaint, or any portion of the complaint, if the complaint 2 “is frivolous, malicious, or fails to state a claim upon which relief may be 3 granted,” or “seeks monetary relief from a defendant who is immune from such 4 relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed, however. 5 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 6 7 essential elements: (1) that a right secured by the Constitution or laws of the 8 United States was violated, and (2) that the alleged violation was committed by a 9 person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 10 (1988). 11 B. 12 Legal Claims It is well established that a prisoner may not be retaliated against for 13 accessing the courts or using prison grievance procedures. See Rhodes v. 14 Robinson, 408 F.3d 559, 567 (9th Cir. 2005). Liberally construed, plaintiff’s 15 allegations that Correctional Officer J. Azevedo falsely charged plaintiff with 16 battery on staff in retaliation for plaintiff threatening to file a staff complaint 17 against Azevedo for sexual harassment appear to state a cognizable retaliation 18 claim under § 1983 against Azevedo and will be ordered served on Azevedo. 19 See, e.g., Watison v. Carter, 668 F.3d 1108, 1114-18 (9th Cir. 2012) (finding 20 cognizable claim under § 1983 where in retaliation for filing grievances, inmate 21 was issued false disciplinary charge by officer). 22 CONCLUSION 23 For the foregoing reasons and for good cause shown, 24 1. The clerk shall issue summons and the United States Marshal shall 25 serve, without prepayment of fees, copies of the complaint in this matter, all 26 attachments thereto, and copies of this order on Correctional Officer J. Azevedo 27 28 2 1 at SQSP. The clerk also shall serve a copy of this order on plaintiff. 2 2. 3 follows: 4 In order to expedite the resolution of this case, the court orders as a. No later than 90 days from the date of this order, defendants 5 shall serve and file a motion for summary judgment or other dispositive motion. 6 A motion for summary judgment must be supported by adequate factual 7 documentation and must conform in all respects to Federal Rule of Civil 8 Procedure 56, and must include as exhibits all records and incident reports 9 stemming from the events at issue. A motion for summary judgment also must 10 be accompanied by a Rand notice so that plaintiff will have fair, timely and 11 adequate notice of what is required of him in order to oppose the motion. Woods 12 v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand 13 v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with 14 motion for summary judgment). A motion to dismiss for failure to exhaust 15 available administrative remedies (where such a motion, rather than a motion for 16 summary judgment for failure to exhaust, is appropriate) must be accompanied 17 by a similar notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); 18 Woods, 684 F.3d at 935 (notice requirement set out in Wyatt v. Terhune, 315 19 F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 747 20 F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with 21 motion to dismiss for failure to exhaust available administrative remedies). 22 If defendants are of the opinion that this case cannot be resolved by 23 summary judgment or other dispositive motion, they shall so inform the court 24 prior to the date their motion is due. All papers filed with the court shall be 25 served promptly on plaintiff. 26 b. Plaintiff must serve and file an opposition or statement of 27 28 3 1 non-opposition to the dispositive motion not more than 28 days after the motion 2 is served and filed. 3 c. Plaintiff is advised that a motion for summary judgment 4 under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your 5 case. Rule 56 tells you what you must do in order to oppose a motion for 6 summary judgment. Generally, summary judgment must be granted when there 7 is no genuine issue of material fact – that is, if there is no real dispute about any 8 fact that would affect the result of your case, the party who asked for summary 9 judgment is entitled to judgment as a matter of law, which will end your case. 10 When a party you are suing makes a motion for summary judgment that is 11 properly supported by declarations (or other sworn testimony), you cannot simply 12 rely on what your complaint says. Instead, you must set out specific facts in 13 declarations, depositions, answers to interrogatories, or authenticated documents, 14 as provided in [current Rule 56(c)], that contradicts the facts shown in the 15 defendant’s declarations and documents and show that there is a genuine issue of 16 material fact for trial. If you do not submit your own evidence in opposition, 17 summary judgment, if appropriate, may be entered against you. If summary 18 judgment is granted, your case will be dismissed and there will be no trial. Rand 19 v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A). 20 Plaintiff also is advised that a motion to dismiss for failure to exhaust 21 available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, 22 end your case, albeit without prejudice. You must “develop a record” and 23 present it in your opposition in order to dispute any “factual record” presented by 24 the defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 25 1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show 26 that you did exhaust your available administrative remedies before coming to 27 28 4 1 federal court. Such evidence may include: (1) declarations, which are statements 2 signed under penalty of perjury by you or others who have personal knowledge 3 of relevant matters; (2) authenticated documents – documents accompanied by a 4 declaration showing where they came from and why they are authentic, or other 5 sworn papers such as answers to interrogatories or depositions; (3) statements in 6 your complaint insofar as they were made under penalty of perjury and they show 7 that you have personal knowledge of the matters state therein. In considering a 8 motion to dismiss for failure to exhaust, the court can decide disputed issues of 9 fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09. 10 (The Rand and Wyatt/Stratton notices above do not excuse defendants’ 11 obligation to serve said notices again concurrently with motions to dismiss for 12 failure to exhaust available administrative remedies and motions for summary 13 judgment. Woods, 684 F.3d at 935.) d. 14 15 Defendants must serve and file a reply to an opposition not more than 14 days after the opposition is served and filed. 16 e. The motion shall be deemed submitted as of the date the 17 reply is due. No hearing will be held on the motion unless the court so orders at a 18 later date. 19 3. Discovery may be taken in accordance with the Federal Rules of 20 Civil Procedure. No further court order under Federal Rule of Civil Procedure 21 30(a)(2) or Local Rule 16 is required before the parties may conduct discovery. 22 4. All communications by plaintiff with the court must be served on 23 defendants, or defendants’ counsel once counsel has been designated, by mailing 24 a true copy of the document to defendants or defendants’ counsel. 25 26 5. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court and all parties informed of any change of address and must comply 27 28 5 1 with the court’s orders in a timely fashion. Failure to do so may result in the 2 dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b). 3 SO ORDERED. 4 DATED: August 4, 2017 CHARLES R. BREYER United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 G:\PRO-SE\CRB\CR.17\Adams, K.17-2043.serve.wpd 27 28 6

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