Jackson v. Sullivan et al

Filing 12

ORDER OF SERVICE. Signed by Judge Claudia Wilken on 4/11/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 4/11/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JONATHAN JACKSON,

No. C 09-1785 CW (PR)
ORDER OF SERVICE

Plaintiff,

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v.

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B. SULLIVAN, et al.,

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Defendants.
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Plaintiff, a death row prisoner incarcerated at San Quentin
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State Prison (SQSP), filed this complaint as a civil action in the
United States District Court
For the Northern District of California

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Monterey County Superior Court, Jackson v. Sullivan, et al.,
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CIV090710, seeking injunctive relief and damages.

In his

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complaint, Plaintiff named the following Defendants: SQSP Warden
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Robert L. Ayers, Appeals Examiner B. Sullivan, and SQSP Appeals
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Coordinator V. Kelly.
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Thereafter, Defendant Ayers removed the action to this Court
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pursuant to 28 U.S.C. § 1441(b).1

The Court conducted a

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preliminary screening of the complaint pursuant to 28 U.S.C.
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§ 1915A(a) and determined that Plaintiff was attempting to state

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three claims for relief, all pertaining to his designation as an

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inmate on restrictive Grade B/Privilege Group D status.

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Specifically, Plaintiff claimed that (1) the Grade B/Privilege

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Group D designation violated due process because Plaintiff was not

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afforded the procedural protections regularly provided to prisoners

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who are reclassified to more restrictive conditions of confinement,

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(2) the designation violated his right to equal protection, and

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(3) the designation violated his rights under the Eighth Amendment.

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Deputy Attorney General Emily Brinkman represents and has
acknowledged service on behalf of Defendant Ayers. Defendants
Sullivan and Kelly have not been served and counsel does not appear
on their behalf.

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The Court dismissed the complaint with leave to amend, finding

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that Plaintiff had failed to allege sufficient facts to state a

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claim for relief under any of the above three theories and that he

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had failed to link Defendants Sullivan and Kelly to his

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allegations.

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Now pending before the Court is Plaintiff's amended complaint.

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The Court finds Plaintiff has cured the noted pleading deficiencies

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with respect to his due process claim by explaining the particular

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terms of the regulation under which he was placed on Grade

United States District Court
For the Northern District of California

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B/Privilege Group D status, alleging how such terms violate his

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right to due process, linking Defendants Sullivan and Kelly to his

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allegations, and alleging facts which, when liberally construed,

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show that conditions of confinement for prisoners on Grade

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B/Privilege Group D status constitute an atypical and substantial

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hardship.

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With respect to his equal protection claim, Plaintiff alleges

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that the procedures used to place death row prisoners on Grade

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B/Privilege Group D status differ from those used to place non-

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death row prisoners on restrictive status in administrative

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segregation and the secured housing unit.

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readily apparent whether death row and non-death row inmates are

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similarly situated under such circumstances, the Court finds that

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at this early stage of the proceedings Plaintiff's allegations,

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when liberally construed, state a non-frivolous equal protection

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claim and may go forward.

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Although it is not

Plaintiff has not alleged facts in the amended complaint

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pertaining to his Eighth Amendment claim.

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is dismissed without prejudice.
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Accordingly, this claim

CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

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Plaintiff states cognizable due process and equal

protection claims against Defendants Ayers, Sullivan and Kelly.
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Plaintiff's Eighth Amendment claim is DISMISSED without

prejudice.
3.

The Clerk of the Court shall mail a Notice of Lawsuit and

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Request for Waiver of Service of Summons, two copies of the Waiver

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of Service of Summons, a copy of the amended complaint and all

United States District Court
For the Northern District of California

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attachments thereto (docket no. 10) and a copy of this Order to:

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(1) Inmate Appeals Coordinator V. Kelly at San Quentin State

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Prison, and (2) Appeals Manager B. Sullivan at the Inmate Appeals

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Branch of the California Department of Corrections and

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Rehabilitation in Sacramento.

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mail a copy of the amended complaint and a copy of this Order to

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the State Attorney General's Office in San Francisco.

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Additionally, the Clerk shall mail a copy of this Order to

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Plaintiff.

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4.

The Clerk of the Court shall also

Defendants are cautioned that Rule 4 of the Federal Rules

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of Civil Procedure requires them to cooperate in saving unnecessary

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costs of service of the summons and complaint.

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if Defendants, after being notified of this action and asked by the

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Court, on behalf of Plaintiff, to waive service of the summons,

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fail to do so, they will be required to bear the cost of such

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service unless good cause be shown for their failure to sign and

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return the waiver form.

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proceed as if Defendants had been served on the date that the

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waiver is filed, except that pursuant to Rule 12(a)(1)(B),

Pursuant to Rule 4,

If service is waived, this action will

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Defendants will not be required to serve and file an answer before

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sixty (60) days from the date on which the request for waiver was

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sent.

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if formal service of summons is necessary.)

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to read the statement set forth at the foot of the waiver form that

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more completely describes the duties of the parties with regard to

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waiver of service of the summons.

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date provided in the Notice but before Defendants have been

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personally served, the Answer shall be due sixty (60) days from the

(This allows a longer time to respond than would be required
Defendants are asked

If service is waived after the

United States District Court
For the Northern District of California

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date on which the request for waiver was sent or twenty (20) days

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from the date the waiver form is filed, whichever is later.

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5.

Defendants shall answer the complaint in accordance with

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the Federal Rules of Civil Procedure.

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schedule shall govern dispositive motions in this action:

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a.

The following briefing

No later than ninety (90) days from the date their

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answer is due, Defendants shall file a motion for summary judgment

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or other dispositive motion.

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adequate factual documentation and shall conform in all respects to

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Federal Rule of Civil Procedure 56.

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opinion that this case cannot be resolved by summary judgment, they

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shall so inform the Court prior to the date the summary judgment

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motion is due.

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served on Plaintiff.

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b.

The motion shall be supported by

If Defendants are of the

All papers filed with the Court shall be promptly

Plaintiff's opposition to the dispositive motion

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shall be filed with the Court and served on Defendants no later

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than sixty (60) days after the date on which Defendants' motion is

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filed.

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be given to pro se plaintiffs facing a summary judgment motion:

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United States District Court
For the Northern District of California

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The Ninth Circuit has held that the following notice should

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.

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See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en

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banc).

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Plaintiff is advised to read Rule 56 of the Federal Rules of

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Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

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(party opposing summary judgment must come forward with evidence

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showing triable issues of material fact on every essential element

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of his claim).

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burden of proving his allegations in this case, he must be prepared

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to produce evidence in support of those allegations when he files

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his opposition to Defendants' dispositive motion.

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may include sworn declarations from himself and other witnesses to

Plaintiff is cautioned that because he bears the

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Such evidence

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the incident, and copies of documents authenticated by sworn

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declaration.

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simply by repeating the allegations of his complaint.

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Plaintiff will not be able to avoid summary judgment

c.

Defendants shall file a reply brief no later than

thirty (30) days after the date Plaintiff's opposition is filed.

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d.

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the reply brief is due.

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unless the Court so orders at a later date.

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6.

The motion shall be deemed submitted as of the date
No hearing will be held on the motion

Discovery may be taken in this action in accordance with

United States District Court
For the Northern District of California

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the Federal Rules of Civil Procedure.

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to Rule 30(a)(2) is hereby granted to Defendants to depose

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Plaintiff and any other necessary witnesses confined in prison.

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7.

Leave of the Court pursuant

All communications by Plaintiff with the Court must be

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served on Defendants, or Defendants' counsel once counsel has been

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designated, by mailing a true copy of the document to Defendants or

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Defendants' counsel.

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8.

It is Plaintiff's responsibility to prosecute this case.

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Plaintiff must keep the Court informed of any change of address and

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must comply with the Court's orders in a timely fashion.

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9.

Extensions of time are not favored, though reasonable

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extensions will be granted.

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

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sought to be extended.

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IT IS SO ORDERED.

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Any motion for an extension of time

DATED: 4/11/2012
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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