Yandell v. Cate et al

Filing 4

ORDER OF SERVICE. Signed by Judge Phyllis J. Hamilton on 11/10/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/10/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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RONALD YANDELL,
Plaintiff,

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v.

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Defendants.

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For the Northern District of California

ORDER OF SERVICE

MATHEW CATE, FRANCISCO
JACQUEZ, G. D. LEWIS, C.
COUNTESS, J. E. PIEREN, D.
BARNEBURG, J. L. McKINNEY,
and G. WILLIAMS,

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United States District Court

No. C 10-5811 PJH (PR)

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Plaintiff, an inmate at Pelican Bay State Prison, has filed a pro se civil rights
complaint under 42 U.S.C. § 1983. He has paid the filing fee.

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at

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1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of

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the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;

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the statement need only '"give the defendant fair notice of what the . . . . claim is and the

omitted). Although in order to state a claim a complaint “does not need detailed factual

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allegations, . . . a plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief'

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(citations omitted). A complaint must proffer "enough facts to state a claim for relief that is

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained

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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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framework of a complaint, they must be supported by factual allegations. When there are

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For the Northern District of California

grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations

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United States District Court

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well-pleaded factual allegations, a court should assume their veracity and then determine

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whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1950 (2009). However, complaints in pro se prisoner cases, such as this one, must

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be liberally construed in favor of the plaintiff when applying the Twombly/Iqbal pleading

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standard. Hebbe v. Miller, 627 F.3d 338, 342 (9th Cir. 2010).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff contends that the defendants had various roles in validating him as a

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member of a prison gang, which resulted in his being placed indefinitely in the Security

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Housing Unit at Pelican Bay. He asserts that the validation violated his First Amendment

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rights of association, even as limited by his imprisonment; his due process rights as

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recognized by a class action case in this court, Castillo v. Marshall, C-94-1847 MJJ; his

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Due Process rights with regard to the validation itself; his First Amendment right to be free

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from retaliation for refusal to speak; and certain state law rights. These allegations are

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sufficient to require a response.
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CONCLUSION

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For the foregoing reasons,

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1. The clerk shall issue summons and the United States Marshal shall serve,

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without prepayment of fees, copies of the complaint with attachments and copies of this

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order on the following defendants: Francisco Jacquez, G. D. Lewis, C. Countess, J. E.

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Pieren, D. Barneburg, and J. L. Mckinney, who plaintiff says can be found at Pelican Bay

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State Prison, and Matthew Cate and G. Williams, who he says can be found at the

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headquarters of the CDCR in Sacramento.

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2. In order to expedite the resolution of this case, the court orders as follows:
a. No later than sixty days from the date of service, defendants shall file a

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For the Northern District of California

United States District Court

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motion for summary judgment or other dispositive motion. The motion shall be supported

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by adequate factual documentation and shall conform in all respects to Federal Rule of

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Civil Procedure 56, and shall include as exhibits all records and incident reports stemming

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from the events at issue. If defendants are of the opinion that this case cannot be resolved

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by summary judgment, they shall so inform the court prior to the date their summary

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judgment motion is due. All papers filed with the court shall be promptly served on the

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plaintiff.

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b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the

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court and served upon defendants no later than thirty days from the date the motion was

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served upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,”

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which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir.

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1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

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If defendants file an unenumerated motion to dismiss claiming that plaintiff failed to

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exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff

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should take note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),”

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which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th

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Cir. 2003).

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c. If defendants wish to file a reply brief, they shall do so no later than fifteen
days after the opposition is served upon them.
d. The motion shall be deemed submitted as of the date the reply brief is
due. No hearing will be held on the motion unless the court so orders at a later date.
3. All communications by plaintiff with the court must be served on defendants, or

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defendants' counsel once counsel has been designated, by mailing a true copy of the

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document to defendants or defendants' counsel.

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5. It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the court
informed of any change of address by filing a separate paper with the clerk headed “Notice
of Change of Address.” He also must comply with the court's orders in a timely fashion.

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For the Northern District of California

United States District Court

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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Dated: November 10, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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P:\PRO-SE\PJH\CR.10\YANDELL5811.SRV.wpd

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NOTICE -- WARNING (SUMMARY JUDGMENT)

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If defendants move for summary judgment, they are seeking to have your case

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dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil

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Procedure will, if granted, end your case.

judgment. Generally, summary judgment must be granted when there is no genuine issue

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of material fact--that is, if there is no real dispute about any fact that would affect the result

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of your case, the party who asked for summary judgment is entitled to judgment as a matter

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of law, which will end your case. When a party you are suing makes a motion for summary

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judgment that is properly supported by declarations (or other sworn testimony), you cannot

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For the Northern District of California

Rule 56 tells you what you must do in order to oppose a motion for summary

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United States District Court

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simply rely on what your complaint says. Instead, you must set out specific facts in

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declarations, depositions, answers to interrogatories, or authenticated documents, as

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provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and

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documents and show that there is a genuine issue of material fact for trial. If you do not

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submit your own evidence in opposition, summary judgment, if appropriate, may be entered

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against you. If summary judgment is granted, your case will be dismissed and there will be

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no trial.

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NOTICE -- WARNING (EXHAUSTION)
If defendants file an unenumerated motion to dismiss for failure to exhaust, they are
seeking to have your case dismissed. If the motion is granted it will end your case.
You have the right to present any evidence you may have which tends to show that

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you did exhaust your administrative remedies. Such evidence may be in the form of

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declarations (statements signed under penalty of perjury) or authenticated documents, that

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is, documents accompanied by a declaration showing where they came from and why they

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are authentic, or other sworn papers, such as answers to interrogatories or depositions.

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If defendants file a motion to dismiss and it is granted, your case will be dismissed
and there will be no trial.

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