Morris v. Ascencio et al

Filing 8

ORDER OF SERVICE; ORDER DIRECTING DEFENDANTS TO FILE A DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK - Dispositive Motion due by 1/25/2021. Signed by Judge William H. Orrick on 10/13/2020. (jmdS, COURT STAFF) (Filed on 10/13/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PHILLIP MORRIS,
Plaintiff,

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United States District Court
Northern District of California

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v.
TODAN ASCENCIO, et al.,
Defendants.

Case No. 20-cv-04923-WHO (PR)
ORDER OF SERVICE;
ORDER DIRECTING
DEFENDANTS TO FILE A
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION;
INSTRUCTIONS TO CLERK

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INTRODUCTION
Plaintiff Phillip Morris alleges that his jailors violated his First Amendment and due
process rights. His 42 U.S.C. § 1983 complaint containing these allegations is now before
the Court for review pursuant to 28 U.S.C. § 1915A(a).
Morris has stated claims against defendants Todan Ascencio and Tracy Jackson.
The Court directs defendants Ascencio and Jackson to file in response to the complaint a
dispositive motion, or notice regarding such motion, on or before January 25, 2021.
STANDARD OF REVIEW
A federal court must conduct a preliminary screening in any case in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any
cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim
upon which relief may be granted or seek monetary relief from a defendant who is immune
from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed.
See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

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A “complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal

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conclusions cast in the form of factual allegations if those conclusions cannot reasonably

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be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55

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(9th Cir. 1994).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

United States District Court
Northern District of California

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
DISCUSSION

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Morris alleges that in October 2018 at San Quentin State Prison, correctional officer

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Todan Ascencio filed a false disciplinary report against him in retaliation for filing

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lawsuits against prison staff. (Compl., Dkt. No. 1 at 3-5.) He also alleges that the officer

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who oversaw the subsequent disciplinary hearing, Lieutenant Tracy Jackson, violated his

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due process right to a fair hearing. (Id. at 6-8.) When liberally construed, Morris has

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stated a First Amendment retaliation claim against Ascencio, and a due process claim

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against Jackson.
CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

The Clerk of the Court shall issue summons and the United States Marshal

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shall serve, without prepayment of fees, a copy of the complaint in this matter (Dkt.

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No. 1), all attachments thereto, and a copy of this order upon San Quentin correctional

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officers Todan Ascencio and Tracy Jackson. The Clerk shall also mail courtesy copies of

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the complaint and this order to the California Attorney General’s Office.
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2.

On or before January 25, 2021, defendants shall file a motion for summary

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judgment or other dispositive motion with respect to the claim(s) in the complaint found to

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be cognizable above.
a.

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If defendants elect to file a motion to dismiss on the grounds plaintiff

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failed to exhaust his available administrative remedies as required by 42 U.S.C.

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§ 1997e(a), defendants shall do so in a motion for summary judgment, as required by

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Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014).
b.

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Any motion for summary judgment shall be supported by adequate

factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of
Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor

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United States District Court
Northern District of California

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qualified immunity found, if material facts are in dispute. If any defendant is of the

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opinion that this case cannot be resolved by summary judgment, he shall so inform the

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Court prior to the date the summary judgment motion is due.

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3.

Plaintiff’s opposition to the dispositive motion shall be filed with the Court

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and served on defendants no later than forty-five (45) days from the date defendants’

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motion is filed.

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4.

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Defendants shall file a reply brief no later than fifteen (15) days after

plaintiff’s opposition is filed.
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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 the plaintiff with the Court must be served on

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

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copy of the document to defendants or defendants’ counsel.

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7.

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

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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local

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Rule 16-1 is required before the parties may conduct discovery.

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Plaintiff is reminded that state prisoners inmates may review all non-confidential
material in their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783
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(Cal. Ct. App. 1974); 15 California Code of Regulations § 3370; and the CDCR’s

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Department Operations Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21,

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and 71010.11.1. Requests to review these files or for copies of materials in them must be

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made directly to prison officials, not to the Court.

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Plaintiff may also use any applicable jail procedures to request copies of (or the

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opportunity to review) any reports, medical records, or other records maintained by jail

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officials that are relevant to the claims found cognizable in this order. Such requests must

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be made directly to jail officials, not to the Court.

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United States District Court
Northern District of California

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8.

Extensions of time must be filed no later than the deadline sought to be

extended and must be accompanied by a showing of good cause.
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A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be

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given “notice of what is required of them in order to oppose” summary judgment motions

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at the time of filing of the motions, rather than when the court orders service of process or

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otherwise before the motions are filed. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir.

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2012). Defendants shall provide the following notice to plaintiff when they file and serve

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any motion for summary judgment:

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The defendants have made a motion for summary judgment by which they
seek to have your case dismissed. A motion for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary
judgment. Generally, summary judgment must be granted when there is no
genuine issue of material fact — that is, if there is no real dispute about any
fact that would affect the result of your case, the party who asked for summary
judgment is entitled to judgment as a matter of law, which will end your case.
When a party you are suing makes a motion for summary judgment that is
properly 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 the
defendants’ 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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Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998).
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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

Court informed of any change of address and 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).
IT IS SO ORDERED.
Dated: October 13, 2020

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_________________________
WILLIAM H. ORRICK
United States District Judge

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United States District Court
Northern District of California

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