Frye v. Oleshea

Filing 11

ORDER OF SERVICE. Signed by Judge Claudia Wilken on 7/6/09. (scc, COURT STAFF) (Filed on 7/6/2009)

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1 2 3 4 5 6 7 8 9 10 United 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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA KARLOS L. FRYE, ) ) Plaintiff, ) ) v. ) ) OFFICER OLESHEA, et al., ) ) Defendants. ) _________________________________ ) No. C 08-5288 CW (PR) ORDER OF SERVICE INTRODUCTION Plaintiff Karlos L. Frye is a state prisoner incarcerated at Salinas Valley State Prison (SVSP). He has filed this civil rights action under 42 U.S.C. § 1983 alleging that SVSP officers violated his Fourth Amendment right to be free from unreasonable searches, his Eighth Amendment right to be free from cruel and unusual punishment, and his Fourteenth Amendment rights to procedural due process and to equal protection. His motion for leave to proceed in forma pauperis has been granted. On April 6, 2009, Plaintiff filed his first amended complaint. Venue is proper in this Court because the injuries complained of occurred at SVSP, which is located within the Northern District of California. See 28 U.S.C. §§ 84(a), 1391(b). BACKGROUND Plaintiff alleges five constitutional violations. First, he alleges prison officials violated his Fourth Amendment rights by conducting an "invasive and unreasonable strip search" without any evidence of wrongdoing. (Am. Compl. at 7.) Plaintiff alleges that a prison official told him that his mother had been "observed . . . making suspicious movements" during a visit. at 3, 5.) (Id. Plaintiff's visit was terminated, and he was strip- 1 searched twice. (Id.) Plaintiff alleges that SVSP Correctional (Id. at 3.) 2 Officer Oleshea led this search. 3 Second, Plaintiff alleges that he was subjected to "inhumane 4 savage cruelty and oppressive treatment" between 3 p.m. on December 5 2, 2007 and 1:30 p.m. on December 4, 2007. (Id. at 6.) During this 6 time, Plaintiff was "on contraband watch," wearing only his 7 underwear, which was taped to his bare skin. 8 Plaintiff's legs and hands were handcuffed. 9 cell containing only a small wooden bench. 11 (Id.) (Id. at 5.) (Id.) (Id.) He was put in a He was "not given 10 a short not mattress to sleep on and a bright light was kept on." United States District Court For the Northern District of California Because he was not provided with toilet paper, soap, or 12 water, he was forced to clean himself after going to the bathroom 13 with his bare hands. (Id. at 6.) Furthermore, he was not provided 14 with utensils with which to eat, nor were his handcuffs removed, so 15 he had to eat his food on his hands and knees "like a savage 16 animal." 17 (Id.) Third, Plaintiff alleges that prison officials violated his Plaintiff alleges that he was 18 Fourteenth Amendment rights. 19 subjected to a "'feces watch' without . . . procedural due process, 20 which is required before punishment of feces watch." 22 time before and after the 'feces watch' started." (Id. at 8.) 21 He argues that he was "entitled to a hearing within a reasonable (Id. at 11.) 23 Plaintiff also alleges that prison officials intentionally prevented 24 him from exhausting his 602 inmate appeal, in violation of his 25 Fourteenth Amendment right to due process. 27 he "is black and his fiancé is white." 28 (Id. at 12.) Finally, 26 Plaintiff alleges that he was "targeted" for these actions, because (Id. at 7.) Plaintiff filed a 602 appeal on December 11, 2007, challenging the allegedly suspicionless three-day "feces watch," which took 2 1 place between December 2 and 4, 2007, and alleging inhumane 2 treatment during this period. (Am. Compl., Ex. A at 1.) The 602 3 appeal was returned to Plaintiff on February 11, 2008, with bypass 4 stamps at the informal and formal levels of review, but it was not 5 given a log number, a date or otherwise signed. (Id.) On that same 6 day, Plaintiff requested an interview with the appeals coordinator 7 in order to obtain a response to his 602 appeal, which he could then 8 appeal to the next level. (Am. Compl. at 3-8.) (Id. at 2.) Plaintiff alleges 9 he never received a response. 11 section 1983. 12 April 6, 2009. 13 Nine months later, on 10 November 21, 2008, Plaintiff filed his original complaint under United States District Court For the Northern District of California As mentioned above, he filed his amended complaint on Plaintiff names the following Defendants: SVSP Correctional 14 Officer Oleshea, Defendants "John Doe" 1 through 6, and the "appeals 15 coordinator." 16 17 I. 18 Standard of Review A federal court must conduct a preliminary screening in any He seeks monetary damages. DISCUSSION 19 case in which a prisoner seeks redress from a governmental entity or 20 officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 21 In its review, the court must identify any cognizable claims and 22 dismiss any claims that are frivolous, malicious, fail to state a 23 claim upon which relief may be granted or seek monetary relief from 24 a defendant who is immune from such relief. 25 26 allege two essential elements: Id. § 1915A(b)(1), (2). To state a claim under 42 U.S.C. § 1983, a plaintiff must (1) that a right secured by the 27 Constitution or laws of the United States was violated, and (2) that 28 the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 3 Pro se 1 pleadings must be liberally construed. Balistreri v. Pacifica 2 Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). 3 II. 4 5 Legal Claims A. Fourth Amendment Unreasonable Search Claim The Supreme Court has not decided whether prison inmates retain See Thompson v. Souza, 111 F.3d 694, 699, 6 Fourth Amendment rights. 7 701 n.4 (9th Cir. 1997). The Ninth Circuit has, however, held that 8 the Fourth Amendment right to be secure against unreasonable 9 searches extends to incarcerated prisoners, although the 10 reasonableness of a particular search must be determined by United States District Court For the Northern District of California 11 reference to the prison context. 12 F.2d 328, 332 (9th Cir. 1988). See Michenfelder v. Sumner, 860 Factors to consider in determining 13 the reasonableness of a search include the scope of the particular 14 intrusion, the manner in which it is conducted, the justification 15 for initiating it, and the place at which it is conducted. 16 Thompson, 111 F.3d at 700. 17 Although Plaintiff does not describe exactly how the strip 18 searches were carried out, he alleges that Defendant Oleshea 19 subjected him to two "invasive and unreasonable strip search[es]," 20 even though he posed no particular security risk to the institution. 21 Liberally construed, the Court finds that Plaintiff has stated a 22 COGNIZABLE Fourth Amendment claim stemming from the strip searches 23 by Defendant Oleshea. 24 25 B. Eighth Amendment Claim See The Constitution does not mandate comfortable prisons, but See Farmer v. Brennan, 511 26 neither does it permit inhumane ones. 27 U.S. 825, 832 (1994). The treatment a prisoner receives in prison 28 and the conditions under which he is confined are subject to 4 1 scrutiny under the Eighth Amendment. 2 U.S. 25, 31 (1993). See Helling v. McKinney, 509 The Eighth Amendment imposes duties on prison 3 officials, who must provide all prisoners with the basic necessities 4 of life such as food, clothing, shelter, sanitation, medical care 5 and personal safety. See Farmer, 511 U.S. at 832; DeShaney v. 6 Winnebago County Dep't of Social Servs., 489 U.S. 189, 199-200 7 (1989); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). 8 A prison official violates the Eighth Amendment when two 9 requirements are met: (1) the deprivation alleged must be, 10 objectively, sufficiently serious, see Farmer, 511 U.S. at 834 United States District Court For the Northern District of California 11 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the 12 prison official must possess a sufficiently culpable state of mind, 13 see id. (citing Wilson, 501 U.S. at 297). 14 In determining whether a deprivation of a basic necessity is 15 sufficiently serious to satisfy the objective component of an Eighth 16 Amendment claim, a court must consider the circumstances, nature, 17 and duration of the deprivation. 19 726, 731 (9th Cir. 2000). The more basic the need, the See Johnson v. Lewis, 217 F.3d 18 shorter the time it can be withheld. Substantial deprivations of shelter, 20 food, drinking water or sanitation for four days, for example, are 21 sufficiently serious to satisfy the objective component of an Eighth 22 Amendment claim. 23 See id. at 732-33. In prison-conditions cases, the necessary state of mind is one See, e.g., Farmer, 511 U.S. at 834. A 24 of "deliberate indifference." 25 prison employee is deliberately indifferent if he knows that a 26 prisoner faces a substantial risk of serious harm and disregards 27 that risk by failing to take reasonable steps to abate it. 28 837. 5 Id. at 1 Liberally construed, the Court finds that Plaintiff's 2 allegations that SVSP prison officials deprived him of clothes, a 3 mattress, basic sanitation products and utensils for forty-eight 4 hours present a COGNIZABLE Eighth Amendment claim for deliberate 5 indifference to his basic life necessities. 6 In the section of the complaint form where he sets forth his 7 allegations of his Eighth Amendment claim, Plaintiff identifies 8 "John Does" 1 through 6 as those who were present and participated 9 in the deliberate indifference to his basic life necessities. 10 explained below, a claim stated against Doe Defendants without United States District Court For the Northern District of California 11 further identifying information is not favored in the Ninth Circuit. 12 See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 13 Therefore, Plaintiff's Eighth Amendment claim cannot proceed unless 14 he amends his complaint to cure this pleading deficiency. 15 Accordingly, Plaintiff's Eighth Amendment claim is DISMISSED 16 WITH LEAVE TO AMEND. 17 18 19 C. Fourteenth Amendment Due Process Claims 1. "Feces Watch" As Prisoners retain their right to due process subject to the See Wolff 20 restrictions imposed by the nature of the penal system. 21 v. McDonnell, 418 U.S. 539, 556 (1974). Thus, although prison 22 disciplinary proceedings are not part of a criminal prosecution and 23 the full panoply of rights due a defendant in such proceedings does 24 not apply, the Due Process Clause requires certain minimum 25 procedural protections if (1) state statutes or regulations narrowly 26 restrict the power of prison officials to impose the deprivation, 27 and (2) the liberty in question is one of "real substance." See 28 Sandin v. Conner, 515 U.S. 472, 477-87 (1995); Wolff, 418 U.S. at 6 1 556-57, 571-72 n.19. 2 California's regulations concerning discipline provide explicit See Cal. Code 3 standards that narrowly fetter official discretion. 4 Regs. tit. 15, § 3320(l) (requiring guilt to be proven by 5 preponderance of evidence standard); § 3320(a) (requiring notice); 6 § 3320(b) (requiring hearing); Walker v. Sumner, 14 F.3d 1415, 1419 7 (9th Cir. 1994) (finding Nevada regulations, which are similar to 8 California's, create liberty interest). The Court assumes for the 9 purpose of this discussion that the "feces watch" sanctions imposed 10 against Plaintiff were deprivations of liberty of real substance. United States District Court For the Northern District of California 11 Wolff established five procedural requirements for prison First, 12 disciplinary hearings implicating the Due Process Clause. 13 "written notice of the charges must be given to the disciplinary14 action defendant in order to inform him of the charges and to enable 15 him to marshal the facts and prepare a defense." 16 564. Wolff, 418 U.S. at Second, "at least a brief period of time after the notice, no 17 less than 24 hours, should be allowed to the inmate to prepare for 18 the appearance before the [disciplinary committee]." Id. Third, 19 "there must be a 'written statement by the factfinders as to the 20 evidence relied on and reasons' for the disciplinary action." 21 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Id. Fourth, 22 "the inmate facing disciplinary proceedings should be allowed to 23 call witnesses and present documentary evidence in his defense when 24 permitting him to do so will not be unduly hazardous to 25 institutional safety or correctional goals." Id. at 566; see also 26 Bartholomew v. Watson, 665 F.2d 915, 917-18 (9th Cir. 1982) (right 27 to call witnesses is basic to fair hearing and decisions to preclude 28 should be on case by case analysis of potential hazards of calling 7 1 particular person). Fifth, "[w]here an illiterate inmate is 2 involved . . . or where the complexity of the issues makes it 3 unlikely that the inmate will be able to collect and present the 4 evidence necessary for an adequate comprehension of the case, he 5 should be free to seek the aid of a fellow inmate, or . . . to have 6 adequate substitute aid . . . from the staff or from a[n] . . . 7 inmate designated by the staff." 8 Wolff, 418 U.S. at 570. In Superintendent v. Hill, 472 U.S. 445, 454 (1985), the Court 9 held that the minimum requirements of procedural due process also 10 require that the findings of the prison disciplinary board be United States District Court For the Northern District of California 11 supported by some evidence in the record. Id. at 454. An 12 examination of the entire record is not required nor is an 13 independent assessment of the credibility of witnesses or weighing 14 of the evidence. See id. The relevant question is whether there is 15 any evidence in the record that could support the conclusion reached 16 by the disciplinary board. Id. at 455. The Ninth Circuit 17 additionally has held that there must be some indicia of reliability 18 of the information that forms the basis for prison disciplinary 19 actions. 20 See Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). The fact that a prisoner may have been innocent of disciplinary 21 charges brought against him, however, does not give rise to a 22 constitutional claim. The Constitution demands due process in See 23 prison disciplinary procedures, not error-free decision-making. 24 Ricker v. Leapley, 25 F.3d 1406, 1410 (8th Cir. 1994); McCrae v. 25 Hankins, 720 F.2d 863, 868 (5th Cir. 1983). 26 Liberally construed, Plaintiff's allegations that he was not 27 granted a hearing before or after he was put on "feces watch" state 28 a COGNIZABLE claim of a violation of his due process rights. 8 See 1 Meachum v. Fano, 427 U.S. 215, 223-27 (1976); Sandin v. Conner, 515 2 U.S. 472, 484 (1995); Toussaint v. McCarthy, 926 F.2d 800, 1098 3 (9th Cir. 1990), cert. denied, 502 U.S. 874 (1991). 4 However, in the section of the complaint form where he sets 5 forth his allegations of his due process claim, Plaintiff identifies 6 "John Does" 1 through 6 as those who were present and participated 7 in denying him a hearing. Plaintiff's due process claim cannot 8 proceed unless he amends his complaint because, as explained below, 9 a claim stated against Doe Defendants is not favored in the Ninth 10 Circuit. United States District Court For the Northern District of California 11 See Gillespie, 629 F.2d at 642. Accordingly, Plaintiff's due process claim is DISMISSED WITH 12 LEAVE TO AMEND to cure this pleading deficiency. 13 14 2. Claim Relating to Grievance Process Interests protected by the Due Process Clause may arise from 15 two sources -- the Due Process Clause itself and laws of the States. 16 See Meachum v. Fano, 427 U.S. 215, 223-27 (1976). 18 system. 19 There is no 17 constitutional right to a prison administrative appeal or grievance Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). However, California Code of Regulations, title 15 section 3084, 20 et seq. grants state prisoners the right to a prison appeals 21 process. The regulations are purely procedural -- they require the 22 establishment of a procedural structure for reviewing prisoner 23 complaints and set forth no substantive standards. Instead, they 24 provide for flexible appeal time limits, see Cal. Code Regs. tit. 25 15, § 3084.6, and, at most, that "no reprisal shall be taken against 26 an inmate or parolee for filing an appeal," id. § 3084.1(d). 27 provision that merely sets procedural requirements, even if 28 mandatory, cannot form the basis of a constitutionally cognizable 9 A 1 liberty interest. Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 2 1993); see, e.g., Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 3 1996) (prison grievance procedure is procedural right that does not 4 give rise to protected liberty interest requiring procedural 5 protections of Due Process Clause); Buckley v. Barlow, 997 F.2d 494, 6 495 (8th Cir. 1993) (same); Azeez v. DeRobertis, 568 F. Supp. 8, 10 7 (N.D. Ill. 1982) (same). Accordingly, a prison official's failure 8 to process grievances, without more, is not actionable under § 1983. 9 See Buckley, 997 F.2d at 495; see also Ramirez, 334 F.3d at 860 10 (prisoner's claimed loss of liberty interest in processing of his United States District Court For the Northern District of California 11 appeals does not violate due process because prisoners lack a 12 separate constitutional entitlement to a specific prison grievance 13 system). Although there is a First Amendment right to petition 14 government for redress of grievances, there is no right to a 15 response or any particular action. See Flick v. Alba, 932 F.2d 728 16 (8th Cir. 1991) ("prisoner's right to petition the government for 17 redress . . . is not compromised by the prison's refusal to 18 entertain his grievance."). 19 Here, Plaintiff's claim that his constitutional rights were 20 violated by the failings of the prison administrative grievance 21 system is DISMISSED with prejudice and without leave to amend. 22 Plaintiff names the "appeals coordinator" as a Defendant in his Plaintiff has failed to state a claim against the Accordingly, Plaintiff's claim against the 23 complaint. 24 "appeals coordinator." 26 with prejudice. 27 25 "appeals coordinator" relating to the grievance process is DISMISSED However, the Court will take into account Plaintiff's 28 allegations if it needs to decide whether he can be excused from 10 1 failing to exhaust his administrative remedies with respect to his 2 other claims.1 3 4 D. Fourteenth Amendment Equal Protection Claim "The Equal Protection Clause of the Fourteenth Amendment 5 commands that no State shall 'deny to any person within its 6 jurisdiction the equal protection of the laws,' which is essentially 7 a direction that all persons similarly situated should be treated 8 alike." 10 United States District Court For the Northern District of California City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 9 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To state a claim for relief under the Equal Protection Clause, 11 a plaintiff must allege that the defendant acted at least in part 12 because of the plaintiff's membership in a protected class. 13 Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003). 14 of a discriminatory intent or purpose is also required. 16 (2003). See Proof City of 15 Cuyahoga Falls, Ohio v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 In the prison context, an allegedly discriminatory prison 17 regulation or practice is valid as long as it is "reasonably related 18 to legitimate penological interests." 19 78, 89 (1987). 20 Here, Plaintiff makes the conclusory allegation that "John 21 Does" 1 through 6 discriminated against him because of his race and 22 his fiance's race by putting him on "feces watch" in December, 2007. 23 Plaintiff alleges no facts showing that similarly situated inmates, 24 25 26 27 28 1 Plaintiff contends he filed administrative appeals (grievances) on the issues in his amended complaint, which have never been answered. It thus appears he has not exhausted his administrative remedies as required by 42 U.S.C. § 1997e(a). If the allegations that his appeals have not been answered are true, however, it may be that administrative remedies are not "available" within the meaning of the statute. This is an issue better resolved at a later stage of the case. Turner v. Safley, 482 U.S. 11 1 who are not African-American, or who have fiances of a different 2 ethnicity, were not put on "feces watch" in similar circumstances. 3 The Court finds that Plaintiff does not state a cognizable equal 4 protection claim against Defendants "John Does" 1 through 6 or 5 Defendant Oleshea. Accordingly, Plaintiff's equal protection claim Plaintiff may reassert his equal 6 is DISMISSED WITH LEAVE TO AMEND. 7 protection claim by filing an amended claim if he can allege in good 8 faith, and by citing actual examples which are subject to proof, 9 that Defendants "John Does" 1 through 6 or Defendant Oleshea placed 10 him on "feces watch" but did not do so for other similarly situated United States District Court For the Northern District of California 11 prisoners of other races. 12 13 E. Claims Against Doe Defendants Plaintiff identifies "John Does" 1 through 6 as Defendants The use of Doe 14 whose names he intends to learn through discovery. 15 Defendants is not favored in the Ninth Circuit. 16 F.2d at 642. See Gillespie, 629 However, where the identity of alleged defendants 17 cannot be known prior to the filing of a complaint the plaintiff 18 should be given an opportunity through discovery to identify them. 19 Id. 21 Failure to afford the plaintiff such an opportunity is error. 20 See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). Accordingly, the claims against the Doe Defendants are Should Plaintiff 22 DISMISSED from this action without prejudice. 24 complaint to add them as named defendants. 26 27 28 23 learn their identities, he may move to file an amendment to the See Brass v. County of 25 Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir. 2003). CONCLUSION For the foregoing reasons, the Court orders as follows: 1. Plaintiff has stated a COGNIZABLE Fourth Amendment claim 12 1 against Defendant Oleshea stemming from the strip searches conducted 2 in December, 2007. 3 2. Plaintiff's Eighth Amendment claim for deliberate 4 indifference to his basic life necessities is DISMISSED WITH LEAVE 5 TO AMEND. 6 3. Plaintiff's Fourteenth Amendment claim that his due 7 process rights were violated when he was not given a hearing before 8 or after he was put on "feces watch" is DISMISSED WITH LEAVE TO 9 AMEND. 10 United States District Court For the Northern District of California 4. Plaintiff's Fourteenth Amendment claim that his due 11 process rights were violated through SVSP's grievance process and 12 his claim against the "appeals coordinator" relating to the 13 grievance process are DISMISSED WITH PREJUDICE. 14 5. Plaintiff's Fourteenth Amendment equal protection claim is 15 DISMISSED WITH LEAVE TO AMEND. 16 6. Within thirty (30) days of the date of this Order 17 Plaintiff may file an amendment to the complaint with his amended 18 Eighth Amendment, due process and equal protection claims as set 19 forth above in Section II(B),(C)(1), and (D) of this Order. 20 (Plaintiff shall resubmit only those claims and not the entire 21 complaint.) The failure to do so will result in the dismissal 22 without prejudice of his Eighth Amendment, due process and equal 23 protection claims. 24 7. The Clerk of the Court shall mail a Notice of Lawsuit and 25 Request for Waiver of Service of Summons, two copies of the Waiver 26 of Service of Summons, a copy of the complaint and amended complaint 27 and all attachments thereto (docket nos. 1, 10) and a copy of this 28 Order to Correctional Officer Oleshea at SVSP. 13 The Clerk of the 1 Court shall also mail a copy of the complaint and a copy of this 2 Order to the State Attorney General's Office in San Francisco. 3 Additionally, the Clerk shall mail a copy of this Order to 4 Plaintiff. 5 8. Defendant is cautioned that Rule 4 of the Federal Rules of 6 Civil Procedure requires him to cooperate in saving unnecessary 7 costs of service of the summons and complaint. Pursuant to Rule 4, 8 if Defendant, after being notified of this action and asked by the 9 Court, on behalf of Plaintiff, to waive service of the summons, 10 fails to do so, he will be required to bear the cost of such service United States District Court For the Northern District of California 11 unless good cause be shown for their failure to sign and return the 12 waiver form. If service is waived, this action will proceed as if 13 Defendant had been served on the date that the waiver is filed, 14 except that pursuant to Rule 12(a)(1)(B), Defendant will not be 15 required to serve and file an answer before sixty (60) days from the 16 date on which the request for waiver was sent. 18 summons is necessary.) (This allows a 17 longer time to respond than would be required if formal service of Defendant is asked to read the statement set 19 forth at the foot of the waiver form that more completely describes 20 the duties of the parties with regard to waiver of service of the 21 summons. If service is waived after the date provided in the Notice 22 but before Defendant has been personally served, the Answer shall be 23 due sixty (60) days from the date on which the request for waiver 24 was sent or twenty (20) days from the date the waiver form is filed, 25 whichever is later. 26 9. Defendant shall answer the complaint in accordance with The following briefing 27 the Federal Rules of Civil Procedure. 28 schedule shall govern dispositive motions in this action: 14 1 a. No later than ninety (90) days from the date his 2 answer is due, Defendant shall file a motion for summary judgment or 3 other dispositive motion. The motion shall be supported by adequate 4 factual documentation and shall conform in all respects to Federal 5 Rule of Civil Procedure 56. If Defendant is of the opinion that 6 this case cannot be resolved by summary judgment, he shall so inform 7 the Court prior to the date the summary judgment motion is due. All 8 papers filed with the Court shall be promptly served on Plaintiff. 9 b. Plaintiff's opposition to the dispositive motion 10 shall be filed with the Court and served on Defendant no later than United States District Court For the Northern District of California 11 sixty (60) days after the date on which Defendant's motion is filed. 12 The Ninth Circuit has held that the following notice should be given 13 to pro se plaintiffs facing a summary judgment motion: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The defendant has 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 15 1 Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 2 (party opposing summary judgment must come forward with evidence 3 showing triable issues of material fact on every essential element 4 of his claim). Plaintiff is cautioned that because he bears the 5 burden of proving his allegations in this case, he must be prepared 6 to produce evidence in support of those allegations when he files 7 his opposition to Defendant's dispositive motion. Such evidence may 8 include sworn declarations from himself and other witnesses to the 9 incident, and copies of documents authenticated by sworn 10 declaration. United States District Court For the Northern District of California 12 Plaintiff will not be able to avoid summary judgment 11 simply by repeating the allegations of his complaint. c. If Defendant wishes to file a reply brief, he shall do 13 so no later than thirty (30) days after the date Plaintiff's 14 opposition is filed. 15 d. The motion shall be deemed submitted as of the date No hearing will be held on the motion 16 the reply brief is due. 18 17 unless the Court so orders at a later date. 10. Discovery may be taken in this action in accordance with Leave of the Court pursuant 19 the Federal Rules of Civil Procedure. 20 to Rule 30(a)(2) is hereby granted to Defendants to depose Plaintiff 21 and any other necessary witnesses confined in prison. 22 11. All communications by Plaintiff with the Court must be 23 served on Defendant, or Defendant's counsel once counsel has been 24 designated, by mailing a true copy of the document to Defendant or 25 Defendant's counsel. 26 12. It is Plaintiff's responsibility to prosecute this case. 27 Plaintiff must keep the Court informed of any change of address and 28 must comply with the Court's orders in a timely fashion. 16 P:\PRO-SE\CW\CR.08\Frye5288.service.frm 1 13. Extensions of time are not favored, though reasonable Any motion for an extension of time 2 extensions will be granted. 3 must be filed no later than fifteen (15) days prior to the deadline 4 sought to be extended. 5 IT IS SO ORDERED. CLAUDIA WILKEN United States District Judge 6 DATED: 7/6/09 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 P:\PRO-SE\CW\CR.08\Frye5288.service.frm 17 1 2 3 4 5 6 7 8 9 v. OLESHEA et al, Defendant. KARLOS L FRYE, Plaintiff, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case Number: CV08-05288 CW CERTIFICATE OF SERVICE / 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 July 6, 2009, 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 located 13 in the Clerk's office. 14 15 Karlos L. Frye T05458 16 D7-129 Salinas Valley State Prison 17 P.O. Box 1050 Soledad, CA 93960-1050 18 Dated: July 6, 2009 19 20 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk P:\PRO-SE\CW\CR.08\Frye5288.service.frm 18

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