Taylor v. Cano et al

Filing 7

ORDER OF SERVICE; DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND APPOINTMENT OF COUNSEL. Habeas Answer or Dispositive Motion due by 1/8/2018. Signed by Magistrate Judge Jacqueline Scott Corley on 11/8/2017. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 11/8/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 BRIAN LEE TAYLOR, 7 Plaintiff, 8 v. 9 X. CANO, et al., 10 Defendants. 11 United States District Court Northern District of California Case No.17-cv-05644-JSC ORDER OF SERVICE; DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND APPOINTMENT OF COUNSEL Re: Dkt. Nos. 3, 4 12 INTRODUCTION 13 14 Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C. § 15 1983 against officials at Pelican Bay State Prison and the California Department of Corrections 16 and Rehabilitation.1 Plaintiff’s application to proceed in forma pauperis is granted in a separate 17 order. For the reasons explained below, the complaint is ordered served upon Defendants. STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 21 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 22 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 23 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 24 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 25 F.2d 696, 699 (9th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 27 1 28 Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 1 at 8.) 1 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 2 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 3 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to 4 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 5 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 6 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 7 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 8 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to 9 state a claim for relief that is plausible on its face.” Id. at 1974. 10 United States District Court Northern District of California 11 12 13 14 15 16 17 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 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 Plaintiff alleges that prison officials incorrectly designated him as an inmate who had sexually assaulted a minor. While the officials’ decision was made in 2010, Plaintiff did not receive notice of the hearing upon which the decision was based, nor did he learn of his designation until 2016, when he was informed that he could no longer receive visits from minors, 18 including his nieces and nephews. Plaintiff further alleges that his designation as a sex offender 19 against a minor puts him in danger of an attack from other inmates. Plaintiff claims that his 20 federal constitutional rights to due process and to free from cruel and unusual punishment were 21 22 23 24 25 26 27 violated. When liberally construed, these claims are cognizable under 42 U.S.C. § 1983. Plaintiff has filed a motion for a preliminary injunction. Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a preliminary injunction. Prior to granting a preliminary injunction, notice to the adverse party is required. See Fed. R. Civ. P. 65(a)(1). Therefore, a motion for preliminary injunction cannot be decided until the parties to the action are served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983). As the Defendants have not yet been served, the motion for a preliminary injunction is DENIED. 28 2 1 Plaintiff has filed a motion for appointment of counsel. Plaintiff is capable of presenting 2 his claims effectively, and the issues, at least at this stage, are not complex. The motion DENIED. 3 CONCLUSION 4 1. The Clerk shall issue a summons and Magistrate Judge jurisdiction consent form 5 and the United States Marshal shall serve, without prepayment of fees, the summons, Magistrate 6 Judge jurisdiction consent form, a copy of the complaint with attachments, and a copy of this 7 order on X. Cano, J. Medellin, Vacarra, R. Sherrill, D. Bermudez, R. Monroy, R. Ahumada, 8 H. Aguilera, at Salinas Valley State Prison, and on Scott Kernan at the California Department 9 of Corrections and Rehabilitation. 10 United States District Court Northern District of California 11 12 13 14 15 16 17 The Clerk shall also mail a courtesy copy of the Magistrate Judge jurisdiction consent form, the complaint with all attachments and a copy of this order to the California Attorney General’s Office. 2. Defendants shall complete and file the Magistrate Judge jurisdiction consent form within the deadline provided on the form. He shall also file an answer in accordance with the Federal Rules of Civil Procedure. 3. To expedite the resolution of this case: a. No later than 91 days from the date this order is issued, Defendants shall file a motion for summary judgment or other dispositive motion. The motion shall be supported by 18 adequate factual documentation and shall conform in all respects to Federal Rule of Civil 19 Procedure 56, and shall include as exhibits all records and incident reports stemming from the 20 events at issue. If Defendants is of the opinion that this case cannot be resolved by summary 21 22 23 24 25 26 27 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 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 Court and served upon Defendants no later than 28 days from the date the motion is filed. 28 3 1 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him 2 pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc). d. Defendants shall file a reply brief no later than 14 days after the opposition is 3 4 filed. e. The motion shall be deemed submitted as of the date the reply brief is due. No 5 6 7 hearing will be held on the motion unless the Court so orders at a later date. 5. All communications by Plaintiff with the Court must be served on Defendants or 8 their counsel once counsel has been designated, by mailing a true copy of the document to 9 Defendants or their counsel. 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the parties may conduct discovery. 7. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address by filing a separate paper with the clerk headed “Notice of Change of Address.” He also must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Reasonable requests for an extension of a deadline will be allowed upon a showing of good cause if the request is filed prior to the deadline. This Order disposes of ECF Nos. 3 and 4. IT IS SO ORDERED. Dated: November 8, 2017 22 23 JACQUELINE SCOTT CORLEY United States Magistrate Judge 24 25 26 27 28 4 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If Defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 United States District Court Northern District of California 11 12 13 14 15 16 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. 17 18 19 20 21 22 23 24 25 26 27 28 5

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