Moore v. Hatton et al

Filing 3

ORDER OF SERVICE. Habeas Answer or Dispositive Motion due by 9/15/2017. Signed by Magistrate Judge Jacqueline Scott Corley on 7/17/2017. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 7/17/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHNNY ANDREW MOORE,

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Plaintiff,

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ORDER OF SERVICE

v.

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S. HATTON, et al.,

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Defendants.

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United States District Court
Northern District of California

Case No.17-cv-03696-JSC

INTRODUCTION

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Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C. §

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1983 against officials at the California Training Facility (“CTF”) and the California Department of

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Corrections and Rehabilitation.1 Plaintiff’s application to proceed in forma pauperis is granted in

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a separate order. For the reasons explained below, the complaint is ordered served upon

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Defendants.
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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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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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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claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the

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statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon

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which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to

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state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to

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provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must

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be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,

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127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to

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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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United States District Court
Northern District of California

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right secured by the Constitution or laws of the United States was violated, and (2) that the alleged
violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.
42, 48 (1988).
LEGAL CLAIMS

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Plaintiff’s allegations that Defendants endangered his safety by knowingly exposing him

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hazardous materials, including airborne asbestos, during the construction of a new building at
CTF, when liberally construed, state cognizable claims for the violation of his rights under the
Eighth Amendment and under state law.

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

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and the United States Marshal shall serve, without prepayment of fees, the summons, Magistrate
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Judge jurisdiction consent form, a copy of the complaint with attachments, and a copy of this
order on Warden S. HATTON; Chief Deputy Warden M. Atchley, Associate Warden K.
Hoffman, Deputy Director J. Lewis, and Chief Deputy Warden M. Biter, at the California
Training Facility and on Secretary Scott Kernan2 at the California Department of
Corrections and Rehabilitation.

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Plaintiff inadvertently refers to the head of the California Department of Corrections as the
“Director Kernon” rather than the Secretary Kernan.
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The Clerk shall also mail a courtesy copy of the Magistrate Judge jurisdiction consent

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form, the complaint with all attachments and a copy of this order to the California Attorney

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General’s Office.

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2.

Defendants shall complete and file the Magistrate Judge jurisdiction consent form

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within the deadline provided on the form. He shall also file an answer in accordance with the

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Federal Rules of Civil Procedure.
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a. No later than 91 days from the date this order is issued, Defendants shall file a

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United States District Court
Northern District of California

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motion for summary judgment or other dispositive motion. The motion shall be supported by
adequate factual documentation and shall conform in all respects to Federal Rule of Civil
Procedure 56, and shall include as exhibits all records and incident reports stemming from the
events at issue. If Defendants is 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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To expedite the resolution of this case:

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.
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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
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.
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All communications by Plaintiff with the Court must be served on Defendants or

their counsel once counsel has been designated, by mailing a true copy of the document to
Defendants or their counsel.

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Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

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No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the

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parties may conduct discovery.

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It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice of

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Change of Address.” He also must comply with the Court's orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b). Reasonable requests for an extension of a deadline will be allowed upon a

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showing of good cause if the request is filed prior to the deadline.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: July 17, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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NOTICE -- WARNING (SUMMARY JUDGMENT)

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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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Generally, summary judgment must be granted when there is no genuine issue of material fact--

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that is, if there is no real dispute about any fact that would affect the result of your case, the party

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who asked for summary judgment is entitled to judgment as a matter of law, which will end your

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

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United States District Court
Northern District of California

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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
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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IT IS SO ORDERED.
Dated:

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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