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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 JONATHAN JACKSON, No. C 09-1785 CW (PR) ORDER OF SERVICE Plaintiff, 4 v. 5 6 B. SULLIVAN, et al., 7 Defendants. ________________________________/ 8 Plaintiff, a death row prisoner incarcerated at San Quentin 9 State Prison (SQSP), filed this complaint as a civil action in the United States District Court For the Northern District of California 10 Monterey County Superior Court, Jackson v. Sullivan, et al., 11 CIV090710, seeking injunctive relief and damages. In his 12 complaint, Plaintiff named the following Defendants: SQSP Warden 13 Robert L. Ayers, Appeals Examiner B. Sullivan, and SQSP Appeals 14 Coordinator V. Kelly. 15 Thereafter, Defendant Ayers removed the action to this Court 16 pursuant to 28 U.S.C. § 1441(b).1 The Court conducted a 17 preliminary screening of the complaint pursuant to 28 U.S.C. 18 § 1915A(a) and determined that Plaintiff was attempting to state 19 three claims for relief, all pertaining to his designation as an 20 inmate on restrictive Grade B/Privilege Group D status. 21 Specifically, Plaintiff claimed that (1) the Grade B/Privilege 22 Group D designation violated due process because Plaintiff was not 23 afforded the procedural protections regularly provided to prisoners 24 who are reclassified to more restrictive conditions of confinement, 25 (2) the designation violated his right to equal protection, and 26 (3) the designation violated his rights under the Eighth Amendment. 27 28 1 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. 1 The Court dismissed the complaint with leave to amend, finding 2 that Plaintiff had failed to allege sufficient facts to state a 3 claim for relief under any of the above three theories and that he 4 had failed to link Defendants Sullivan and Kelly to his 5 allegations. 6 Now pending before the Court is Plaintiff's amended complaint. 7 The Court finds Plaintiff has cured the noted pleading deficiencies 8 with respect to his due process claim by explaining the particular 9 terms of the regulation under which he was placed on Grade United States District Court For the Northern District of California 10 B/Privilege Group D status, alleging how such terms violate his 11 right to due process, linking Defendants Sullivan and Kelly to his 12 allegations, and alleging facts which, when liberally construed, 13 show that conditions of confinement for prisoners on Grade 14 B/Privilege Group D status constitute an atypical and substantial 15 hardship. 16 With respect to his equal protection claim, Plaintiff alleges 17 that the procedures used to place death row prisoners on Grade 18 B/Privilege Group D status differ from those used to place non- 19 death row prisoners on restrictive status in administrative 20 segregation and the secured housing unit. 21 readily apparent whether death row and non-death row inmates are 22 similarly situated under such circumstances, the Court finds that 23 at this early stage of the proceedings Plaintiff's allegations, 24 when liberally construed, state a non-frivolous equal protection 25 claim and may go forward. 26 Although it is not Plaintiff has not alleged facts in the amended complaint 27 pertaining to his Eighth Amendment claim. 28 is dismissed without prejudice. 2 Accordingly, this claim CONCLUSION 1 2 For the foregoing reasons, the Court orders as follows: 3 1. 4 5 6 7 Plaintiff states cognizable due process and equal protection claims against Defendants Ayers, Sullivan and Kelly. 2. Plaintiff's Eighth Amendment claim is DISMISSED without prejudice. 3. The Clerk of the Court shall mail a Notice of Lawsuit and 8 Request for Waiver of Service of Summons, two copies of the Waiver 9 of Service of Summons, a copy of the amended complaint and all United States District Court For the Northern District of California 10 attachments thereto (docket no. 10) and a copy of this Order to: 11 (1) Inmate Appeals Coordinator V. Kelly at San Quentin State 12 Prison, and (2) Appeals Manager B. Sullivan at the Inmate Appeals 13 Branch of the California Department of Corrections and 14 Rehabilitation in Sacramento. 15 mail a copy of the amended complaint and a copy of this Order to 16 the State Attorney General's Office in San Francisco. 17 Additionally, the Clerk shall mail a copy of this Order to 18 Plaintiff. 19 4. The Clerk of the Court shall also Defendants are cautioned that Rule 4 of the Federal Rules 20 of Civil Procedure requires them to cooperate in saving unnecessary 21 costs of service of the summons and complaint. 22 if Defendants, after being notified of this action and asked by the 23 Court, on behalf of Plaintiff, to waive service of the summons, 24 fail to do so, they will be required to bear the cost of such 25 service unless good cause be shown for their failure to sign and 26 return the waiver form. 27 proceed as if Defendants had been served on the date that the 28 waiver is filed, except that pursuant to Rule 12(a)(1)(B), Pursuant to Rule 4, If service is waived, this action will 3 1 Defendants will not be required to serve and file an answer before 2 sixty (60) days from the date on which the request for waiver was 3 sent. 4 if formal service of summons is necessary.) 5 to read the statement set forth at the foot of the waiver form that 6 more completely describes the duties of the parties with regard to 7 waiver of service of the summons. 8 date provided in the Notice but before Defendants have been 9 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 10 date on which the request for waiver was sent or twenty (20) days 11 from the date the waiver form is filed, whichever is later. 12 5. Defendants shall answer the complaint in accordance with 13 the Federal Rules of Civil Procedure. 14 schedule shall govern dispositive motions in this action: 15 a. The following briefing No later than ninety (90) days from the date their 16 answer is due, Defendants shall file a motion for summary judgment 17 or other dispositive motion. 18 adequate factual documentation and shall conform in all respects to 19 Federal Rule of Civil Procedure 56. 20 opinion that this case cannot be resolved by summary judgment, they 21 shall so inform the Court prior to the date the summary judgment 22 motion is due. 23 served on Plaintiff. 24 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 25 shall be filed with the Court and served on Defendants no later 26 than sixty (60) days after the date on which Defendants' motion is 27 28 4 1 filed. 2 be given to pro se plaintiffs facing a summary judgment motion: 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 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. 17 See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en 18 banc). 19 Plaintiff is advised to read Rule 56 of the Federal Rules of 20 Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 21 (party opposing summary judgment must come forward with evidence 22 showing triable issues of material fact on every essential element 23 of his claim). 24 burden of proving his allegations in this case, he must be prepared 25 to produce evidence in support of those allegations when he files 26 his opposition to Defendants' dispositive motion. 27 may include sworn declarations from himself and other witnesses to Plaintiff is cautioned that because he bears the 28 5 Such evidence 1 the incident, and copies of documents authenticated by sworn 2 declaration. 3 simply by repeating the allegations of his complaint. 4 5 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. 6 d. 7 the reply brief is due. 8 unless the Court so orders at a later date. 9 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 10 the Federal Rules of Civil Procedure. 11 to Rule 30(a)(2) is hereby granted to Defendants to depose 12 Plaintiff and any other necessary witnesses confined in prison. 13 7. Leave of the Court pursuant All communications by Plaintiff with the Court must be 14 served on Defendants, or Defendants' counsel once counsel has been 15 designated, by mailing a true copy of the document to Defendants or 16 Defendants' counsel. 17 8. It is Plaintiff's responsibility to prosecute this case. 18 Plaintiff must keep the Court informed of any change of address and 19 must comply with the Court's orders in a timely fashion. 20 9. Extensions of time are not favored, though reasonable 21 extensions will be granted. 22 must be filed no later than fifteen (15) days prior to the deadline 23 sought to be extended. 24 IT IS SO ORDERED. 25 26 Any motion for an extension of time DATED: 4/11/2012 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 27 28 6

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