Jones v. Evans et al

Filing 14

ORDER OF SERVICE AND ADDRESSING PENDING MOTIONS by Judge Claudia Wilken denying 7 Motion for TRO; denying 7 Motion for Preliminary Injunction; denying 10 Motion for Summary Judgment; denying 12 Motion for Default Judgment (scc, COURT STAFF) (Filed on 9/19/2008)

1 2 3 4 5 6 7 8 9 MALIK JONES,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) v. ) ) ) MIKE EVANS, Warden, et al., ) ) Defendants. _________________________________ ) No. C 07-04277 CW (PR) ORDER OF SERVICE AND ADDRESSING PENDING MOTIONS (Docket nos. 7, 10, 12)

Plaintiff Malik Jones, a state prisoner currently incarcerated

United States District Court For the Northern District of California

10 at High Desert State Prison (HDSP), has filed the present pro se 11 civil rights action pursuant to 42 U.S.C. § 1983 alleging a 12 violation of his constitutional rights while incarcerated at 13 Salinas Valley State Prison (SVSP). His motion for leave to 14 proceed in forma pauperis has been granted. Venue is proper in 15 this district because the events giving rise to the action occurred 16 at SVSP, which is located in this district. 17 § 1371(b). 18 19 BACKGROUND Plaintiff alleges that while he was incarcerated at SVSP, See 28 U.S.C.

20 Defendant SVSP Officer Bailey created a "false 128G chonol [sic] 21 with fabricated information on Plaintiff stating plaintiff was a 22 child molester/had lewd and or lascivious crimes against children." 23 24 25 26 27 28 (Compl. at 3). Plaintiff further alleges that Defendant Bailey

distributed the false 128G chrono to other inmates in an effort to "get Plaintiff killed or seriously injured." (Id.) In addition,

Plaintiff, who is wheelchair-bound, claims that Defendant Bailey "pushed Plaintiff out of his wheelchair" during a verbal altercation; however, Plaintiff does not specify when and where

1 this incident took place.

(Id.)

Plaintiff claims that Defendant

2 Bailey's conduct violated his Eighth Amendment protection from 3 "cruel and unusual punishment" and his Fourteenth Amendment 4 guarantees of due process and equal protection. 5 Plaintiff's next claim involves Defendants SVSP Warden Mike

6 Evans, SVSP Correctional Counselor Martines, SVSP Sergeant L. 7 Washington, SVSP Officer E. Contrazs and an unidentified female 8 officer, SVSP Officer Jane Doe. It concerns Plaintiff's transfer (Id. at 5.) He alleges

9 to High Desert State Prison (HDSP).

10 Defendants violated his due process rights by "not stoping transfer United States District Court For the Northern District of California 11 after Plaintiff and Plaintiff's mother Doris Reed informed them 12 Plaintiffs safety and security would be put endanger if transferred 13 due to false 128G chronol [sic]." 15 scheduled transfer to HDSP. 17 (Id. at 5.) 18 Plaintiff's third claim involves Defendant SVSP Sergeant 19 Washington, as well as Defendants SVSP Correctional Officers D. 20 Lang, Contrazs and Jane Doe. The incident allegedly occurred at 21 the Correctional Treatment Center (CTC) after a visit with a Dr. 22 Bowman, who was treating Plaintiff for back spasms. After 23 Plaintiff's medical visit, Defendants Lang, Washington, Contrazs 24 and Jane Doe entered the examiner's room, confiscated his property, 25 verbally harassed him, and shackled his hands, waist and feet. 26 (Id. at 6.) The officers then "threw [Plaintiff] in [his] (Id.) Defendant Lang 27 wheelchair" and took him outside the prison. (Id.) Plaintiff contends that 14 at some point he complained to Defendant Martines about his According to the complaint, Defendant 16 Martines did nothing to stop Plaintiff from being transferred.

28 attempted to break Plaintiff's thumb by "bending it in the wrong 2

1 direction."

(Id.)

The officers then "threw" Plaintiff to the

2 ground, causing [him] to hit [his] head on ground, causing pain and 3 injury." (Id.) The officers then dragged Plaintiff to a van with (Id.) Plaintiff claims the inmates witnessed

4 two other inmates.

5 officers "assaulting Plaintiff," and one of the inmates is named 6 "Brown." (Id.) The officers decided to take Plaintiff, instead, (Id.) Plaintiff claims that, while he was being

7 to another car.

8 dragged to the car, Defendant Washington "attempted to break 9 Plaintiff's wrist" and that Plaintiff's head was scraped along the 10 ground, "causing more pain and injury to [his] head." United States District Court For the Northern District of California Plaintiff 11 then claims that he was thrown across the back seat of the car, 12 that the officers "used car door to repeatedly slam Plaintiff's 13 knees between it," and that one of the officers "slammed car door 14 with force so that it would hit Plaintiff in the head . . . ." 15 (Id.) Finally, he claims that on the way to HDSP, Defendants Lang 16 and Jane Doe forced Plaintiff to drink a "liquid substance" while 17 "laughing [and] stating its [sic] your medication." 19 force in violation of the Eighth Amendment. 20 Plaintiff claims that he filed several 602 inmate appeals, but Plaintiff alleges he eventually exhausted He seeks 21 they were screened out. (Id.) 18 Plaintiff contends that these officers used excessive physical

22 his administrative remedies with respect to these claims. 24 emotional injuries. 25 26 I. 27 Standard of Review DISCUSSION

23 monetary compensation and injunctive relief for his physical and

A federal court must conduct a preliminary screening in any

28 case in which a prisoner seeks redress from a governmental entity 3

1 or officer or employee of a governmental entity. 2 § 1915A(a).

See 28 U.S.C.

It its review, the court must identify cognizable

3 claims and dismiss any claims that are frivolous, malicious, fail 4 to state a claim upon which relief may be granted or seek monetary 5 relief from a defendant who is immune from such relief. 6 § 1915A(b)(1),(2). 7 construed. See id.

Pro se pleadings must, however, be liberally

See Balistreri v. Pacifica Police Dep't, 901 F.2d 696,

8 699 (9th Cir. 1988). 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must

10 allege two essential elements: (1) that a right secured by the United States District Court For the Northern District of California 11 Constitution or laws of the United States was violated, and 12 (2) that the alleged violation was committed by a person acting 13 under the color of state law. 14 (1988). 15 A supervisor may be liable under § 1983 upon a showing of 16 personal involvement in the constitutional deprivation or a 17 sufficient causal connection between the supervisor's wrongful 18 conduct and the constitutional violation. 20 omitted). Redman v. County of San 19 Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc) (citation A supervisor therefore generally "is only liable for 21 constitutional violations of his subordinates if the supervisor 22 participated in or directed the violations, or knew of the 23 violations and failed to act to prevent them." 24 F.2d 1040, 1045 (9th Cir. 1989). Taylor v. List, 880 See West v. Atkins, 487 U.S. 42, 48

A supervisor may be liable for

25 implementing "a policy so deficient that the policy itself is a 26 repudiation of constitutional rights and is the moving force of the 27 constitutional violation." Redman, 942 F.2d at 1446; see Jeffers 28 v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001). 4

1 II. 2 3

Plaintiff's Claims A. Injunctive Relief Claims The

Plaintiff seeks both injunctive relief and money damages.

4 jurisdiction of the federal courts depends on the existence of a 5 "case or controversy" under Article III of the Constitution. Pub.

6 Util. Comm'n of State of Cal. v. FERC, 100 F.3d 1451, 1458 (9th 7 Cir. 1996). A claim is considered moot if it has lost its

8 character as a present, live controversy and if no effective relief 9 can be granted; where the question sought to be adjudicated has 10 been mooted by developments subsequent to filing of the complaint, United States District Court For the Northern District of California 11 no justiciable controversy is presented. 12 83, 95 (1968). Flast v. Cohen, 392 U.S.

Where injunctive relief is requested, questions of See

13 mootness are determined in light of the present circumstances. 14 Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996). 15 When an inmate has been transferred to another prison and 16 there is no reasonable expectation nor demonstrated probability

17 that he will again be subjected to the prison conditions from which 18 he seeks injunctive relief, the claim for injunctive relief should 19 be dismissed as moot. 20 (9th Cir. 1995). See Dilley v. Gunn, 64 F.3d 1365, 1368-69

A claim that the inmate might be re-transferred

21 to the prison where the injury occurred is too speculative to 22 overcome mootness. 23 Id.

Because all Plaintiff's claims for injunctive relief are

24 against SVSP officials and he is no longer incarcerated at SVSP, 25 his claims are DISMISSED as moot. 26 27 B. Eighth Amendment Claims See Mitchell, 75 F.3d at 528.

A prisoner has the right to be free from cruel and unusual Whenever

28 punishment, including physical abuse by prison guards. 5

1 prison officials stand accused of using excessive physical force in 2 violation of the Eighth Amendment, the core judicial inquiry is 3 whether force was applied in a good-faith effort to maintain or 4 restore discipline, or maliciously and sadistically to cause harm. 5 Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citing Whitley v. 6 Albers, 475 U.S. 312, 317 (1986)). 7 Plaintiff alleges two separate instances in which he suffered First, he alleges that Defendant Bailey pushed (Compl. at

8 excessive force.

9 him out of his wheelchair during a verbal altercation. 10 3.) United States District Court For the Northern District of California 11 abused by prison guards during his transfer to HDSP.

Second, Plaintiff alleges that he was brutally beaten and (Id. at 5-7.)

12 Based on his allegations, the Court is unable to say that Plaintiff 13 can prove no set of facts which would entitle him to relief in 14 support of his claims of the malicious and sadistic use of force. 15 Accordingly, the Court finds cognizable Plaintiff's Eighth 16 Amendment claim against Defendants Bailey, Lang, Washington, 17 Contrazs and Jane Doe. 18 Plaintiff's allegations relating to the incident of excessive 19 force during his transfer to HDSP also state a claim for deliberate 20 indifference to his serious medical needs. See Estelle v. Gamble, 21 429 U.S. 97, 104 (1976) (deliberate indifference to serious medical 22 needs presents a cognizable claim for violation of the Eighth 23 Amendment). Plaintiff states that after he was abused by 24 Defendants Lang, Washington, Contrazs and Jane Doe, he was "laid 25 across back seat of car in chronic pain with massive headache 26 fading in an out of consciousness while being forcibly taken 27 to . . . HDSP." (Compl. at 6.) He claims the correctional 28 officers continued to transport him to HDSP and failed to seek 6

1 medical treatment for Plaintiff's injuries.

(Id.)

Accordingly,

2 Plaintiff has adequately pled cognizable claims against named 3 Defendants Lang, Washington, Contrazs and Jane Doe for deliberate 4 indifference to his medical needs. 5 6 C. Claim Relating to Falsified 128G Chrono

Plaintiff alleges that the falsified 128G chrono distributed

7 to other inmates by Defendant Bailey violated his due process 8 rights. 9 A prisoner has no constitutionally guaranteed immunity from Sprouse v. Babcock, 870 F.2d

10 being falsely or wrongly accused. United States District Court For the Northern District of California

11 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951 (2d 12 Cir. 1986), cert. denied, 485 U.S. 982 (1988). 14 due process violation. 16 report was false. While Plaintiff 13 claims the 128G chronos were false, his allegations do not state a Plaintiff does not contend that he did not 15 receive procedural due process -­ his claim is simply that the Therefore, the Court finds that Plaintiff's 17 allegations that Officer Bailey falsified the chrono is not in of 18 itself sufficient to state a constitutional injury under the Due 19 Process Clause. See Paul v. Davis, 424 U.S. 693, 711-14 (1976); 20 see also Reyes v. Supervisor of Drug Enforcement Admin., 834 F.2d 21 1093, 1097 (1st Cir. 1987) (no due process claim for false 22 information maintained by police department); Pruett v. Levi, 622 23 F.2d 256, 258 (6th Cir. 1980) (mere existence of inaccuracy in FBI 24 criminals files does not state constitutional claim). 26 prejudice. 27 Plaintiff further alleges that the 128G chorno was falsified 28 and distributed to other inmates in an effort to cause harm or even 7 Therefore, 25 his due process claim against Defendant Bailey is DISMISSED with

1 death to Plaintiff.

Such a claim amounts to a claim of deliberate

2 indifference to Plaintiff's safety needs. 3 The Eighth Amendment requires that prison officials take Farmer

4 reasonable measures to guarantee the safety of prisoners. 5 v. Brennan, 511 U.S. 825, 832 (1994).

In particular, prison

6 officials have a duty to protect prisoners from violence at the 7 hands of other prisoners. Id. at 833; Hearns v. Terhune, 413 F.3d

8 1036, 1040 (9th Cir. 2005); Hoptowit v. Ray, 682 F.2d 1237, 1250 9 (9th Cir. 1982); Gillespie v. Civiletti, 629 F.2d 637, 642 & n.3 10 (9th Cir. 1980). United States District Court For the Northern District of California The failure of prison officials to protect 11 inmates from attacks by other inmates or from dangerous conditions 12 at the prison violates the Eighth Amendment only when two 13 requirements are met: (1) the deprivation alleged is, objectively, 14 sufficiently serious; and (2) the prison official is, subjectively, 15 deliberately indifferent to inmate safety. 16 834; Hearns, 413 F.3d at 1040-41. 17 Plaintiff does not allege that he suffered any harm as a In fact, Plaintiff (Compl. at 4.) He 18 result of Defendant Bailey's alleged conduct. Farmer, 511 U.S. at

19 states he was "safe for the most part at SVSP."

20 claims that a fellow inmate named Thomas Edwards alerted him to the 21 false 128G chrono and, with inmate Edwards's help, he was able to 22 "explain to most inmates on D-Yard that 128G chronol [sic] is false 23 and Defendant Bailey was doing this to get Plaintiff killed or 24 seriously injured." 26 relief. (Id. at 3.) However, a prisoner need not 25 wait until he is actually assaulted to state a claim and obtain See Farmer, 511 U.S. at 845; Woodhous v. Virginia, 487 27 F.2d 889, 890 (4th Cir. 1973); Stickney v. List, 519 F. Supp. 617, 28 620 (D. Nev. 1981). 8

1

Accordingly, Plaintiff has stated a cognizable Eighth

2 Amendment claim for deliberate indifference to his safety needs 3 against Defendant Bailey based on his allegations related to the 4 falsified 128G chrono. 5 6 D. Equal Protection Claims

"The Equal Protection Clause of the Fourteenth Amendment

7 commands that no State shall 'deny to any person within its 8 jurisdiction the equal protection of the laws,' which is 9 essentially a direction that all persons similarly situated should 10 be treated alike." United States District Court For the Northern District of California 12 (1982)). City of Cleburne v. Cleburne Living Center, 473 11 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 A plaintiff alleging denial of equal protection under 42 13 U.S.C. § 1983 must plead intentional unlawful discrimination or 14 allege facts that are at least susceptible of an inference of 15 discriminatory intent. 17 See Monteiro v. Tempe Union High School 16 Dist., 158 F.3d 1022, 1026 (9th Cir. 1998). Plaintiff does not argue that the mistreatment alleged in any Accordingly, his equal 18 of his claims occurred because of his race. 20 21

19 protection claims are DISMISSED without prejudice. E. Claim Challenging to Transfer to HDSP

Plaintiff's due process claim challenging his transfer to HDSP

22 is not cognizable because it is well established that prisoners 23 have no constitutional right to incarceration in a particular 24 institution. See Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983); A prisoner's liberty 25 Meachum v. Fano, 427 U.S. 215, 224 (1976).

26 interests are sufficiently extinguished by his conviction that the 27 State may generally transfer him to any of its institutions, to 28 prisons in another State or to federal prisons, without offending the Constitution. See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 9

1 1985) (citing Meachum, 427 U.S. at 225) (intrastate prison transfer 2 does not implicate Due Process Clause); Olim, 461 U.S. at 244-48 3 (interstate prison transfer does not implicate Due Process 4 Clause)). A non-consensual transfer is not per se violative of

5 either due process or equal protection rights, see Johnson v. 6 Moore, 948 F.2d 517, 519 (9th Cir. 1991); Stinson v. Nelson, 525 7 F.2d 728, 730 (9th Cir. 1975), and no due process protections such 8 as notice or a hearing need be afforded before a prisoner is 9 transferred, even if the transfer is for disciplinary reasons or to 10 a considerably less favorable institution, see Montanye v. Haymes, United States District Court For the Northern District of California 11 427 U.S. 236, 242 (1976); Johnson, 948 F.2d at 519. 13 prison administrators' expertise." 14 (2002). 15 However, if prison officials deliberately transferred a 16 prisoner to an institution where he would be in danger from which 17 they could not protect him, then such an act could amount to an 18 Eighth Amendment violation. Plaintiff has not alleged that he was Rather, he alleges 19 in any more danger at HDSP than he was at SVSP. "It is well 12 settled that the decision where to house inmates is at the core of McKune v. Lile, 536 U.S. 24, 39

20 that the 128G chorno was distributed to inmates at SVSP and does 21 not allege that Defendant Bailey distributed it at HDSP. 22 Accordingly, Plaintiff's due process claim challenging his 23 transfer to HDSP is DISMISSED without prejudice. 24 If Plaintiff can truthfully allege facts that would support a 25 claim that particular prison officials transferred him to HDSP with 26 deliberate indifference to particular facts establishing serious 27 danger to his safety there, he may move for leave to amend his 28 complaint. 10

1 2

F.

State Law Claims

In addition to the federal claims discussed above, Plaintiff Because his state law

3 asserts state law claims against Defendants.

4 claims arise out of the same acts and events giving rise to his 5 federal claims, the Court will exercise supplemental jurisdiction 6 over the claims. 7 See 28 U.S.C. § 1367(a).

Plaintiff alleges that he is entitled to relief under

8 California tort law for the officers' attack on him during his 9 transfer. He asserts supplementary state law claims that the

10 actions of Defendants Washington, Lang, and Contrazs constituted United States District Court For the Northern District of California 11 both negligence and the intentional torts of assault and battery. 12 The Court finds his state law claims cognizable. 13 III. Defendants 14 Plaintiff has named and directly linked to his surviving 15 allegations of excessive force Defendants Bailey, Washington Lang 16 and Contrazs. 18 Accordingly, the Court will order service of the 17 complaint on these Defendants. Plaintiff identifies one Doe Defendant who participated in the 19 incident where he was allegedly brutalized during a prison 20 transfer. The use of "Doe" to identify a defendant is not favored Gillespie v. Civiletti, 629 F.2d 637, 642 21 in the Ninth Circuit. 22 (9th Cir. 1980).

However, where the identity of alleged defendants

23 cannot be known prior to the filing of a complaint, the plaintiff 24 should be given an opportunity through discovery to identify them. 25 See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). 26 Accordingly, the claims against Defendant Jane Doe are Should Plaintiff 27 DISMISSED from this action without prejudice.

28 learn Defendant Jane Doe's identity, he may move to file an amended 11

1 complaint to add her as a named defendant.

See Brass v. County of

2 Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir. 2003). 3 IV. 4 5 Plaintiff's Pending Motions A. Motion for Temporary Restraining Order

Plaintiff has filed a motion for a temporary restraining order The motion

6 (TRO) and/or a preliminary injunction (docket no 7).

7 requests that he be granted an "emergency transfer" out of HDSP to 8 ensure his safety and security. Plaintiff claims that, since he

9 arrived at HDSP, he "has been subjected to ongoing constant 10 retaliation, harassment, [and] intimidation . . . ." United States District Court For the Northern District of California 11 (Id.)

Because HDSP is not in this judicial district, Plaintiff must

12 present any claims regarding his conditions of confinement at that 13 prison in the United States District Court for the Eastern District 14 of California. Therefore, Plaintiff's motion for a TRO and/or a 15 preliminary injunction (docket no. 7) is DENIED without prejudice 16 to filing an action in the Eastern District of California, where 17 HDSP is located. 19 at SVSP. 20 21 B. Motion for Summary Judgment He alleges The instant action will be limited to damages for 18 Defendants' actions or omissions while Plaintiff was incarcerated

Plaintiff has filed a motion for summary judgment.

22 that, because he has submitted "overwhelming evidence" and because 23 the defendants have failed to respond, he is entitled to summary 24 judgment under Fed. R. Civ. P. 56(c). 25 Under Rule 56 of the Federal Rules of Civil Procedure, summary 26 judgment may be entered "if the pleadings, the discovery and 27 disclosure materials on file, and any affidavits show that there is 28 no genuine issue as to any material fact and that the movant is 12

1 entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c).

2 In the present case, Defendants have not yet had an opportunity to 3 defend this action because they have not yet been served. 4 Therefore, Plaintiff's motion for summary judgment (docket no. 10) 5 is DENIED. 6 7 8 C. Motion for Default Judgment

Plaintiff has also filed a motion for default judgment. Under Rule 55 of the Federal Rules of Civil Procedure,

9 judgment by default may be entered "[w]hen a party against whom 10 affirmative relief is sought has failed to plead or otherwise United States District Court For the Northern District of California 11 defend" as provided by these rules. Fed. R. Civ. P. 55(a). In the 12 present case, Defendants have not failed to defend this action, and 13 the facts alleged by Plaintiff do not entitle him to an entry of 14 default against them. 15 Defendants. 16 Accordingly, Plaintiff's request for default judgment (docket 17 no. 12) is DENIED. 18 19 20 21 moot. 22 2. Plaintiff has adequately alleged a cognizable Eighth 23 Amendment claim against Defendants Bailey, Washington, Lang and 24 Contrazs for the use of excessive force. 25 3. Plaintiff has adequately pled cognizable claims against 26 named Defendants Lang, Washington and Contrazs for deliberate 27 indifference to his medical needs. 28 4. Plaintiff's due process claim against Defendant Bailey 13 CONCLUSION For the foregoing reasons, the Court orders as follows: 1. Plaintiff's claims for injunctive relief are DISMISSED as The complaint has not been served on

1 related to the alleged distribution of a falsified 128G chrono is 2 DISMISSED WITH PREJUDICE. However, the Court finds that Plaintiff

3 has stated a cognizable Eighth Amendment claim for deliberate 4 indifference to his safety needs against Defendant Bailey based on 5 his allegations relating to the falsified 128G chrono. 6 5. Plaintiff's equal protection claims are DISMISSED WITHOUT

7 PREJUDICE. 8 6. Plaintiff's due process claim against Defendants Evans,

9 Martines, Washington and Contrazs challenging his transfer to HDSP 10 is DISMISSED WITHOUT PREJUDICE. United States District Court For the Northern District of California 11 7. The Court asserts SUPPLEMENTAL JURISDICTION over 12 Plaintiff's state law claims. 13 8. Plaintiff's claims against Defendant Jane Doe are 14 DISMISSED WITHOUT PREJUDICE. 15 9. The Clerk of the Court shall mail a Notice of Lawsuit and 16 Request for Waiver of Service of Summons, two copies of the Waiver 17 of Service of Summons, a copy of the complaint and all attachments 18 thereto (docket no. 1) and a copy of this Order to SVSP Sergeant L. 19 Washington and SVSP Correctional Officers Bailey, D. Lang and E. 20 Contrazs. The Clerk of the Court shall also mail a copy of the 21 complaint and a copy of this Order to the State Attorney General's 22 Office in San Francisco. 24 Additionally, the Clerk shall mail a copy 23 of this Order to Plaintiff. 10. Defendants are cautioned that Rule 4 of the Federal Rules 25 of Civil Procedure requires them to cooperate in saving unnecessary 26 costs of service of the summons and complaint. Pursuant to Rule 4, 27 if Defendants, after being notified of this action and asked by the 28 Court, on behalf of Plaintiff, to waive service of the summons, 14

1 fail to do so, they will be required to bear the cost of such 2 service unless good cause be shown for their failure to sign and 3 return the waiver form. If service is waived, this action will

4 proceed as if Defendants had been served on the date that the 5 waiver is filed, except that pursuant to Rule 12(a)(1)(B), 6 Defendants will not be required to serve and file an answer before 7 sixty (60) days from the date on which the request for waiver was 8 sent. (This allows a longer time to respond than would be required Defendants are asked

9 if formal service of summons is necessary.)

10 to read the statement set forth at the foot of the waiver form that United States District Court For the Northern District of California 11 more completely describes the duties of the parties with regard to 12 waiver of service of the summons. If service is waived after the 13 date provided in the Notice but before Defendants have been 14 personally served, the Answer shall be due sixty (60) days from the 15 date on which the request for waiver was sent or twenty (20) days 16 from the date the waiver form is filed, whichever is later. 17 11. Defendants shall answer the complaint in accordance with The following briefing 18 the Federal Rules of Civil Procedure. 20

19 schedule shall govern dispositive motions in this action: a. No later than ninety (90) days from the date their 21 answer is due, Defendants shall file a motion for summary judgment 22 or other dispositive motion. The motion shall be supported by 23 adequate factual documentation and shall conform in all respects to 24 Federal Rule of Civil Procedure 56. If Defendants are of the 25 opinion that this case cannot be resolved by summary judgment, they 26 shall so inform the Court prior to the date the summary judgment 27 motion is due. 28 15 All papers filed with the Court shall be promptly

1 served on Plaintiff. 2 b. Plaintiff's opposition to the dispositive motion

3 shall be filed with the Court and served on Defendants no later 4 than sixty (60) days after the date on which Defendants' motion is 5 filed. The Ninth Circuit has held that the following notice should

6 be given to pro se plaintiffs facing a summary judgment motion: 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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 [in favor of the defendants], your case will be dismissed and there will be no trial. See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that because he bears the 16

1 burden of proving his allegations in this case, he must be prepared 2 to produce evidence in support of those allegations when he files 3 his opposition to Defendants' dispositive motion. Such evidence

4 may include sworn declarations from himself and other witnesses to 5 the incident, and copies of documents authenticated by sworn 6 declaration. Plaintiff will not be able to avoid summary judgment

7 simply by repeating the allegations of his complaint. 8 c. If Defendants wish to file a reply brief, they shall

9 do so no later than thirty (30) days after the date Plaintiff's 10 opposition is filed. United States District Court For the Northern District of California 11 d. The motion shall be deemed submitted as of the date No hearing will be held on the motion 12 the reply brief is due. 14

13 unless the Court so orders at a later date. 12. Discovery may be taken in this action in accordance with Leave of the Court pursuant 15 the Federal Rules of Civil Procedure.

16 to Rule 30(a)(2) is hereby granted to Defendants to depose 17 Plaintiff and any other necessary witnesses confined in prison. 18 13. All communications by Plaintiff with the Court must be 19 served on Defendants, or Defendants' counsel once counsel has been 20 designated, by mailing a true copy of the document to Defendants or 21 Defendants' counsel. 22 14. It is Plaintiff's responsibility to prosecute this case. 23 Plaintiff must keep the Court informed of any change of address and 24 must comply with the Court's orders in a timely fashion 25 15. Extensions of time are not favored, though reasonable Any motion for an extension of time 26 extensions will be granted. 28 sought to be extended. 17

27 must be filed no later than fifteen (15) days prior to the deadline

1

16.

Plaintiff's motion for a TRO and/or a preliminary

2 injunction (docket no. 7) is DENIED without prejudice to filing an 3 action in the Eastern District of California. 4 17. Because the complaint has not been served, the following "Motion for Summary Judgment"

5 motions are DENIED as premature:

6 (docket no. 10) and "Motion Moving for Default Judgment" (docket 7 no. 12). 8 9 18. This Order terminates Docket nos. 7, 10 and 12.

IT IS SO ORDERED. 9/19/08 CLAUDIA WILKEN United States District Judge

10 DATED: United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 2 3 4 5 6 7 8 9 v. MALIK JONES, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV07-04277 CW CERTIFICATE OF SERVICE

MIKE EVANS, WARDEN et al, Defendant. /

United States District Court For the Northern District of California

10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 11 That on September 19, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said 12 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 13 located in the Clerk's office. 14 15 Malik Jones K-09065 16 High Desert State Prison Facility D-5-109 17 P.O. Box 3030 Susanville, CA 96127 18 Dated: September 19, 2008 19 20 21 22 23 24 25 26 27 28
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Richard W. Wieking, Clerk By: Clara Pierce, Deputy Clerk

19