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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KASEEM ADAMS, P35154,
Plaintiff(s),

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v.

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J. AZEVEDO, Correctional Officer,
Defendant(s).

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No. C 17-2043 CRB (PR)
ORDER OF SERVICE

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Plaintiff, a state prisoner currently incarcerated at the Deuel Vocational

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Institution (DVI) in Tracy,1 has filed a pro se complaint for damages under 42

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U.S.C. § 1983 alleging that on November 14, 2015, while plaintiff was

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incarcerated at San Quentin State Prison (SQSP), Correctional Officer J. Azevedo

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falsely charged plaintiff with battery on staff in retaliation for plaintiff

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threatening to file a staff complaint against Azevedo for sexual harassment.

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which

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prisoners seek redress from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

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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.

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claims or dismiss 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 relief may be

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granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed, however.

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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

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essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated, and (2) that the alleged violation was committed by a

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person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48

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(1988).

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B.

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Legal Claims
It is well established that a prisoner may not be retaliated against for

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accessing the courts or using prison grievance procedures. See Rhodes v.

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Robinson, 408 F.3d 559, 567 (9th Cir. 2005). Liberally construed, plaintiff’s

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allegations that Correctional Officer J. Azevedo falsely charged plaintiff with

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battery on staff in retaliation for plaintiff threatening to file a staff complaint

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against Azevedo for sexual harassment appear to state a cognizable retaliation

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claim under § 1983 against Azevedo and will be ordered served on Azevedo.

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See, e.g., Watison v. Carter, 668 F.3d 1108, 1114-18 (9th Cir. 2012) (finding

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cognizable claim under § 1983 where in retaliation for filing grievances, inmate

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was issued false disciplinary charge by officer).

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

The clerk shall issue summons and the United States Marshal shall

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serve, without prepayment of fees, copies of the complaint in this matter, all

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attachments thereto, and copies of this order on Correctional Officer J. Azevedo

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at SQSP. The clerk also shall serve a copy of this order on plaintiff.

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2.

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follows:

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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

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shall serve and file a motion for summary judgment or other dispositive motion.

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A motion for summary judgment must be supported by adequate factual

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documentation and must conform in all respects to Federal Rule of Civil

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Procedure 56, and must include as exhibits all records and incident reports

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stemming from the events at issue. A motion for summary judgment also must

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be accompanied by a Rand notice so that plaintiff will have fair, timely and

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adequate notice of what is required of him in order to oppose the motion. Woods

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v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand

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v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with

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motion for summary judgment). A motion to dismiss for failure to exhaust

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available administrative remedies (where such a motion, rather than a motion for

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summary judgment for failure to exhaust, is appropriate) must be accompanied

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by a similar notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012);

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Woods, 684 F.3d at 935 (notice requirement set out in Wyatt v. Terhune, 315

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F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 747

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F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with

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motion to dismiss for failure to exhaust available administrative remedies).

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

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summary judgment or other dispositive motion, they shall so inform the court

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prior to the date their motion is due. All papers filed with the court shall be

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served promptly on plaintiff.

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b.

Plaintiff must serve and file an opposition or statement of

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non-opposition to the dispositive motion not more than 28 days after the motion

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is served and filed.

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c.

Plaintiff is advised that a motion for summary judgment

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under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your

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case. Rule 56 tells you what you must do in order to oppose a motion for

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summary judgment. Generally, summary judgment must be granted when there

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is no genuine issue of material fact – that is, if there is no real dispute about any

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fact that would affect the result of your case, the party who asked for summary

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judgment is entitled to judgment as a matter of law, which will end your case.

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When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply

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rely on what your complaint says. Instead, you must set out specific facts in

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declarations, depositions, answers to interrogatories, or authenticated documents,

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as provided in [current Rule 56(c)], that contradicts the facts shown in the

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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,

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summary judgment, if appropriate, may be entered against you. If summary

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judgment is granted, your case will be dismissed and there will be no trial. Rand

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v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).

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Plaintiff also is advised that a motion to dismiss for failure to exhaust

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available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted,

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end your case, albeit without prejudice. You must “develop a record” and

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present it in your opposition in order to dispute any “factual record” presented by

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the defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108,

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1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show

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that you did exhaust your available administrative remedies before coming to

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federal court. Such evidence may include: (1) declarations, which are statements

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signed under penalty of perjury by you or others who have personal knowledge

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of relevant matters; (2) authenticated documents – documents accompanied by a

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declaration showing where they came from and why they are authentic, or other

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sworn papers such as answers to interrogatories or depositions; (3) statements in

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your complaint insofar as they were made under penalty of perjury and they show

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that you have personal knowledge of the matters state therein. In considering a

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motion to dismiss for failure to exhaust, the court can decide disputed issues of

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fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09.

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(The Rand and Wyatt/Stratton notices above do not excuse defendants’

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obligation to serve said notices again concurrently with motions to dismiss for

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failure to exhaust available administrative remedies and motions for summary

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judgment. Woods, 684 F.3d at 935.)
d.

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Defendants must serve and file a reply to an opposition not

more than 14 days after the opposition is served and filed.

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e.

The motion shall be deemed submitted as of the date the

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reply is due. No hearing will be held on the motion unless the court so orders at a

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later date.

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3.

Discovery may be taken in accordance with the Federal Rules of

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Civil Procedure. No further court order under Federal Rule of Civil Procedure

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30(a)(2) or Local Rule 16 is required before the parties may conduct discovery.

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4.

All communications by plaintiff with the court must be served on

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defendants, or defendants’ counsel once counsel has been designated, by mailing

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a true copy of the document to defendants or defendants’ counsel.

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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

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with the court’s orders in a timely fashion. Failure to do so may result in the

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dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b).

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SO ORDERED.

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DATED:

August 4, 2017

CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.17\Adams, K.17-2043.serve.wpd

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