Frost v. Hallock et al

Filing 5

ORDER OF SERVICE. Habeas Answer or Dispositive Motion due by 4/10/2018. Signed by Magistrate Judge Jacqueline Scott Corley on 2/9/2018. (ahm, COURT STAFF) (Filed on 2/9/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SHAWN KEVIN FROST, 7 Plaintiff, 8 ORDER OF SERVICE v. 9 J. HALLOCK, et al., 10 Defendants. 11 United States District Court Northern District of California Case No.17-cv-07229-JSC INTRODUCTION 12 Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C. § 13 14 1983 against officials at Pelican Bay State Prison (“PBSP”).1 Plaintiff’s application to proceed in 15 forma pauperis is granted in a separate order. For the reasons explained below, the complaint is 16 ordered served upon Defendants. STANDARD OF REVIEW 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek 18 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 20 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 21 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 22 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 23 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 24 F.2d 696, 699 (9th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 26 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 27 1 28 Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 4.) 1 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 2 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to 3 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 4 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 5 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 6 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 7 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to 8 state a claim for relief that is plausible on its face.” Id. at 1974. 9 10 United States District Court Northern District of California 11 12 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 13 14 15 16 17 Plaintiff alleges that Defendants issued a Rules Violation Report (“RVR”) finding him guilty of violating prison rules for participating in a hunger strike at PBSP. The punishment he received included a term in the Secured Housing Unit, a loss of time credits, and suspension of a variety of privileges such as telephone calls, canteen access, and recreational activities. According to Plaintiff, he challenged the RVR in administrative appeals, to no avail. He then challenged the 18 RVR in state court by filing habeas petitions in the superior court and the California Court of 19 Appeal, also to no avail. While his petition for review was pending in the California Supreme 20 Court, however, PBSP officials dismissed the RVR. Plaintiff now seeks money damages for the 21 22 23 punishment he received. When liberally construed, Plaintiff states a cognizable claim for relief against Defendants for violating his right to due process. 24 25 26 27 CONCLUSION 1. 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 complaint with attachments, and a copy of this 28 2 1 order on D. Barneburg, R.E. Barnes, A. Bond, D.W. Bradbury, Clark E. Ducart, J. Hallock, 2 J. Hunt, D. Melton, and T.A. Wood at Pelican Bay State Prison. The Clerk shall also mail a courtesy copy of the Magistrate Judge jurisdiction consent 3 4 form, the complaint with all attachments and a copy of this order to the California Attorney 5 General’s Office. 6 2. Defendants shall complete and file the Magistrate Judge jurisdiction consent form 7 within the deadline provided on the form. He shall also file an answer in accordance with the 8 Federal Rules of Civil Procedure. 3. 9 a. No later than 91 days from the date this order is issued, Defendants shall file a 10 United States District Court Northern District of California 11 12 13 14 15 16 To expedite the resolution of this case: 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 17 separate paper, the appropriate notice required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th 18 Cir. 1998) (en banc). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012). 19 c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 20 Court and served upon Defendants no later than 28 days from the date the motion is filed. 21 22 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc). 23 24 d. Defendants shall file a reply brief no later than 14 days after the opposition is filed. 25 26 27 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. 5. All communications by Plaintiff with the Court must be served on Defendants or 28 3 1 their counsel once counsel has been designated, by mailing a true copy of the document to 2 Defendants or their counsel. 3 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 4 No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 5 parties may conduct discovery. 6 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 8 Change of Address.” He also must comply with the Court's orders in a timely fashion. Failure to 9 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 10 Civil Procedure 41(b). Reasonable requests for an extension of a deadline will be allowed upon a 11 United States District Court Northern District of California 7 showing of good cause if the request is filed prior to the deadline. 12 13 IT IS SO ORDERED. Dated: February 9, 2018 14 15 JACQUELINE SCOTT CORLEY United States Magistrate Judge 16 17 18 19 20 21 22 23 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 17 18 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. IT IS SO ORDERED. Dated: February 9, 2018 19 20 JACQUELINE SCOTT CORLEY United States Magistrate Judge 21 22 23 24 25 26 27 28 5 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SHAWN KEVIN FROST, Case No. 17-cv-07229-JSC Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 J. HALLOCK, et al., Defendants. United States District Court Northern District of California 11 12 13 14 15 16 17 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 February 9, 2018, 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. 18 19 20 21 Shawn Kevin Frost ID: H-86714 CSP-Sacramento P.O. Box 290066 A3-207 Represa, CA 95671 22 23 Dated: February 9, 2018 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Ada Means, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 6

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