Wright v. Hedgepath et al

Filing 32

ORDER DIRECTING CLERK TO FILE AND SERVE SECOND AMENDED COMPLAINT, DENYING DISCOVERY MOTIONS WITHOUT PREJUDICE, DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE. Signed by Judge Claudia Wilken on 8/11/2011. (ndr, COURT STAFF) (Filed on 8/11/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 09-04358 CW (PR)

DEMETRIUS A. WRIGHT,
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Plaintiff,
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v.
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A. HEDGPETH, et al.,
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Defendants.

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United States District Court
For the Northern District of California

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Plaintiff Demetrius A. Wright, a state prisoner incarcerated
at Salinas Valley State Prison (SVSP), filed the above-titled pro
se civil rights action pursuant to 42 U.S.C. § 1983 claiming the
violation of his First Amendment rights.

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Defendants have filed a

motion for summary judgment with respect to the claims raised in
Plaintiff's first amended complaint (FAC).

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ORDER DIRECTING CLERK TO FILE
AND SERVE SECOND AMENDED
COMPLAINT, DENYING DISCOVERY
MOTIONS WITHOUT PREJUDICE,
DENYING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT WITHOUT
PREJUDICE

Now pending before the Court are Plaintiff's motions (1) to
file a second amended complaint (SAC), (2) to quash Defendants'
subpoena seeking access to Plaintiff's central file, (3) to compel
discovery, and (4) for an extension of time to oppose Defendants'
motion for summary judgment.
A.

Second Amended Complaint
Plaintiff asks for leave to file a SAC on the following

grounds:
(1) Plaintiff has discovered the identity of the John Doe
Defendant named in count 1 of the FAC.

The Court had dismissed

this claim without prejudice to Plaintiff's moving to amend the FAC
should he discover the Doe Defendant's identity.

Plaintiff

identifies the Defendant in claim 1 as "Jewish Chaplain Friedman."

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(2) Plaintiff realleges his claims against Defendants G.D.

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Lewis and N. Grannis, whom Plaintiff previously named in claim 1 of

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the FAC.

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cognizable, it dismissed the claim against Defendants Lewis and

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Grannis and failed to order the FAC served on them.

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Plaintiff states that, although the Court found the claim

(3) Plaintiff clarifies that Defendant A. Landou, whom the

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Court identified in the Order of Service as a Correctional

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Sergeant, is an Islamic Chaplain.

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(4) Plaintiff realleges his claim against Defendants D.

United States District Court
For the Northern District of California

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Galloway, R. Mantel and D. Binkele, against whom the Court

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previously dismissed Plaintiff's claim 3 in the FAC.

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states that these Defendants were not named in claim 3 but,

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instead, were named in claim 2, which the Court found cognizable.

Plaintiff

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(5) The Court previously found not cognizable Plaintiff's

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claim 3, alleging that his constitutional rights had been violated

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by the mishandling of his Qu'ran and the search of his person by

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Defendant Newby.

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that the actions complained of were part of a pattern of conduct.

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Plaintiff states this claim can be added to the SAC because he

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exhausted his administrative remedies with respect thereto since

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filing the FAC.

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Plaintiff now seeks to amend claim 3 by alleging

The Court GRANTS Plaintiff leave to file a SAC that includes

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the allegations set forth at paragraphs 1 through 4 above.

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Court allows Plaintiff to reallege claim 1 against Defendants Lewis

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and Grannis, to reallege claim 2 against Defendants Galloway,

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Mantel and Binkele and orders the SAC served on all unserved

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Defendants.

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2

The

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Leave to amend to reallege claim 3, as discussed at paragraph

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5 above, is DENIED.

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that were not exhausted when the action was filed originally.

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McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).

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B.

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Plaintiff cannot now add to this action claims
See

Discovery and Briefing Matters
Plaintiff filed a motion to quash a subpoena issued by

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Defendants to view the entirety of Plaintiff's central prison file,

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and for a protective order to prevent the production of any

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information in his central file not relevant to the instant action.

United States District Court
For the Northern District of California

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More recently, Plaintiff filed a motion to compel discovery

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responses from Defendants.

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of Plaintiff's motions.

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Defendants have not responded to either

Plaintiff also has filed a motion for an extension of time to
oppose Defendants' motion for summary judgment.

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In view of the Court's decision that five Defendants not

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previously served must be served with the SAC and respond to the

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same claims that are addressed in Defendants' pending motion for

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summary judgment, the Court finds it premature to address

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Plaintiff's discovery-related motions or to order further briefing

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on Defendants' motion for summary judgment.

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Accordingly, Plaintiff's discovery motions and Defendants'

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motion for summary judgment are hereby DENIED without prejudice,

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and Plaintiff's request for an extension of time to oppose the

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motion for summary judgment is DENIED as moot.

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file renewed motions once all Defendants have been served and the

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parties have had the opportunity to engage in further discovery.

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//

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//

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The parties may

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Plaintiff's motion for leave to file a SAC is GRANTED.

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The Clerk of the Court shall file the proposed SAC that was

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docketed as "received" on May 17, 2010 (docket no. 11).

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United States District Court
For the Northern District of California

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2.

Plaintiff's motions to quash and to compel discovery are

DENIED without prejudice.
3.

Plaintiff's motion for an extension of time to oppose

Defendants' motion for summary judgment is DENIED as moot.
4.

Defendants' motion for summary judgment is DENIED without

prejudice.
5.

The portion of the Court's Order of Service dismissing

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claims against Defendants D. Galloway, R. Mantel, D. Binkele, G.D.

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Lewis and N. Grannis is VACATED.

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6.

The Clerk shall mail a Notice of Lawsuit and Request for

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

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of Summons, a copy of the SAC and all attachments thereto (docket

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no. 11) and a copy of this Order to the following (1) SVSP

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officials: Deputy Warden G.D. Lewis, Correctional Sergeant D.

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Galloway, Facility Captain R. Mantel, Facility Captain R. Binkele,

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and (2) N. Grannis, Chief of the Inmate Appeals Branch for the

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California Department of Corrections and Rehabilitation in

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Sacramento.

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The Clerk shall also serve a copy of the SAC on Defendants'
counsel Jesse Manuel Rivera at the address on the Court's docket.
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Defendants are cautioned that Rule 4 of the Federal Rules

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of Civil Procedure requires Defendants to cooperate in saving

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unnecessary costs of service of the summons and amended complaint.

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Pursuant to Rule 4, if Defendants, after being notified of this

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action and asked by the Court, on behalf of Plaintiff, to waive

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service of the summons, fails to do so, Defendants will be required

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to bear the cost of such service unless good cause be shown for

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their failure to sign and return the waiver form.

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waived, this action will proceed as if Defendants had been served

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on the date that the waiver is filed, except that pursuant to Rule

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12(a)(1)(B), Defendants will not be required to serve and file an

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answer before sixty (60) days from the date on which the request

If service is

United States District Court
For the Northern District of California

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for waiver was sent.

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would be required if formal service of summons is necessary.)

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Defendants are asked to read the statement set forth at the foot of

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the waiver form that more completely describes the duties of the

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parties with regard to waiver of service of the summons.

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service is waived after the date provided in the Notice but before

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Defendants have been personally served, the Answer shall be due

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

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sent or twenty (20) days from the date the waiver form is filed,

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whichever is later.

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8.

(This allows a longer time to respond than

If

Defendants shall answer the SAC in accordance with the

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Federal Rules of Civil Procedure.

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shall govern dispositive motions in this action:

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a.

The following briefing schedule

No later than ninety (90) days from the date

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Defendants' answer is due, Defendants shall file a motion for

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summary judgment or other dispositive motion.

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supported by adequate factual documentation and shall conform in

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all respects to Federal Rule of Civil Procedure 56.

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are of the opinion that this case cannot be resolved by summary

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The motion shall be

If Defendants

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judgment, Defendants shall so inform the Court prior to the date

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the summary judgment motion is due.

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Court shall be promptly served on Plaintiff.

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b.

All papers filed with the

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

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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 amended complaint.

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c.

Plaintiff is cautioned that because he bears the

Such evidence

Plaintiff will not be able to avoid summary judgment

If Defendants wish to file a reply brief, Defendants

United States District Court
For the Northern District of California

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shall do so no later than thirty (30) days after the date

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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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9.

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

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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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10.

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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11.

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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12.

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

Any motion for an extension of time

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sought to be extended.

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This Order terminates Docket nos. 21, 27, 28, 30 and 31.

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IT IS SO ORDERED.

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DATED: 8/11/2011
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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DEMETRIUS A. WRIGHT,
Case Number: CV09-04358 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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A. HEDGEPATH et al,
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Defendant.
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United States District Court
For the Northern District of California

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/

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 August 11, 2011, 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.

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Demetrius Ahmed Wright T65802
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960
Dated: August 11, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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