Boulware v. Dunstan

Filing 4

ORDER OF SERVICE. Signed by Judge Claudia Wilken on 5/7/2010. (ndr, COURT STAFF) (Filed on 5/7/2010)

1 2 3 4 5 6 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 v. D. M. DUNSTAN,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA RUBEN ODELL BOULWARE, Plaintiff, No. C 09-02792 CW (PR) ORDER OF SERVICE

Defendant. ________________________________/ INTRODUCTION Plaintiff Ruben Odell Boulware, a state prisoner currently incarcerated at California Men's Colony State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. He alleges that

Defendant CTF Correctional Officer D. M. Dunstan retaliated against him for filing inmate grievances while incarcerated at the Correctional Training Facility (CTF) in Soledad, California. Plaintiff's motion for leave to proceed in forma pauperis has been granted. Venue is proper in this district because the acts complained of occurred at CTF, located in Monterey County, which is within this judicial district. 28 U.S.C. §§ 84(a), 1391(b).

Plaintiff raised the same retaliation claim against Defendant Dunstan in a previous action before this Court. 2733 CW (PR). See Case no. 06-

On December 18, 2007, Plaintiff's retaliation claim

in Case no. 06-2733 CW (PR) was dismissed without prejudice to refiling it in a new action because he "did not exhaust his administrative remedies with respect to his retaliation claim in a timely manner." at 9.) (Dec. 18, 2007 Order in Case no. 06-2733 CW (PR)

Plaintiff now claims that he has since exhausted his

administrative remedies with respect to his retaliation claim.

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Therefore, he has re-filed his retaliation claim against Defendant Dunstan in the present action. DISCUSSION I. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. § 1915A(a). 28 U.S.C.

In its review, the court must identify any cognizable

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

Pro se pleadings must be liberally construed.

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. (1988). II. Retaliation Claim Plaintiff alleges several acts of retaliation by Defendant Dunstan, including: instructing prison staff not to provide Plaintiff with "clean clothing" in August, 2005; intimidating Plaintiff on September 7, 2005; authoring fabricated rule violation reports against Plaintiff on November 7, 2005, November 28, 2005, and January 18, 2006; and conducting harassing searches of Plaintiff's cell and seizures of his property on November 29, 2005. 2 West v. Atkins, 487 U.S. 42, 48

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(Compl. at 5-9.)

Prisoners may not be retaliated against for

exercising their right of access to the courts, Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995), which extends to established prison grievance procedures, Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). Plaintiff alleges that Defendant

Dunstan's actions were in retaliation against Plaintiff for filing grievances. The Court finds that, liberally construed, Plaintiff's See

claim for retaliation for filing grievances is cognizable. Schroeder, 55 F.3d at 461; Bradley, 64 F.3d at 1279. CONCLUSION

For the foregoing reasons, the Court orders as follows: 1. Plaintiff presents a constitutionally cognizable

retaliation claim against Defendant Dunstan. 2. The Clerk of the Court shall mail a Notice of Lawsuit and

Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and all attachments thereto (docket no. 1) and a copy of this Order to CTF Correctional Officer D. M. Dunstan. The Clerk of the Court shall also mail a

copy of the complaint and a copy of this Order to the State Attorney General's Office in San Francisco. Additionally, the

Clerk shall mail a copy of this Order to Plaintiff. 3. Defendant is cautioned that Rule 4 of the Federal Rules

of Civil Procedure requires Defendant to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fails to do so, Defendant will be required to bear the cost of such service unless good cause be shown for 3

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their failure to sign and return the waiver form.

If service is

waived, this action will proceed as if Defendant had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be required to serve and file an answer before sixty (60) days from the date on which the request for waiver was sent. (This allows a longer time to respond than

would be required if formal service of summons is necessary.) Defendant is asked to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If

service is waived after the date provided in the Notice but before Defendant has been personally served, the Answer shall be due sixty (60) days from the date on which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later. 4. Defendant shall answer the complaint in accordance with The following briefing

the Federal Rules of Civil Procedure.

schedule shall govern dispositive motions in this action: a. No later than ninety (90) days from the date

Defendant's answer is due, Defendant shall file a motion for summary judgment or other dispositive motion. The motion shall be

supported by adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56. If Defendant

is of the opinion that this case cannot be resolved by summary judgment, Defendant shall so inform the Court prior to the date the summary judgment motion is due. All papers filed with the Court

shall be promptly served on Plaintiff. b. Plaintiff's opposition to the dispositive motion 4

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

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

burden of proving his allegations in this case, he must be prepared to produce evidence in support of those allegations when he files his opposition to Defendant's dispositive motion. 5 Such evidence

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

simply by repeating the allegations of his complaint. c. If Defendant wishes to file a reply brief, Defendant

shall do so no later than thirty (30) days after the date Plaintiff's opposition is filed. d. The motion shall be deemed submitted as of the date No hearing will be held on the motion

the reply brief is due.

unless the Court so orders at a later date. 5. Discovery may be taken in this action in accordance with Leave of the Court pursuant

the Federal Rules of Civil Procedure.

to Rule 30(a)(2) is hereby granted to Defendants to depose Plaintiff and any other necessary witnesses confined in prison. 6. All communications by Plaintiff with the Court must be

served on Defendant, or Defendant's counsel once counsel has been designated, by mailing a true copy of the document to Defendant or Defendant's counsel. 7. It is Plaintiff's responsibility to prosecute this case.

Plaintiff must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. 8. Extensions of time are not favored, though reasonable Any motion for an extension of time

extensions will be granted.

must be filed no later than fifteen (15) days prior to the deadline sought to be extended. IT IS SO ORDERED. DATED: 5/7/2010 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 6

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA RUBEN ODELL BOULWARE, Plaintiff, v. D M DUNSTAN et al, Defendant. /

Case Number: CV09-02792 CW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 7, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said 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 in the Clerk's office.

Ruben Odell Boulware V16965 California Men's Colony State Prison Cell #5239X P.O. Box 8101 San Luis Obispo, CA 93960 Dated: May 7, 2010 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk

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