Struggs v. Hedgpeth

Filing 8

ORDER OF SERVICE. Signed by Judge Claudia Wilken on 10/7/2011. (ndr, COURT STAFF) (Filed on 10/7/2011)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

CEDRIC LYNN STRUGGS,

4
5
6
7
8

No. C 11-02191 CW (PR)

Plaintiff,
ORDER OF SERVICE

v.
MIKE EVANS, Warden, et al.,
Defendants.
___________________________________

9
INTRODUCTION

United States District Court
For the Northern District of California

10
11

Plaintiff, a state prisoner currently incarcerated at Salinas

12

Valley State Prison (SVSP), has filed a pro se civil rights action

13

pursuant to 42 U.S.C. § 1983 alleging the violation of his federal

14

constitutional rights.

15

pauperis has been granted.

16

His motion for leave to proceed in forma

Venue is proper because the events giving rise to the claim

17

are alleged to have occurred at SVSP, which is located in this

18

judicial district.

19
20

See 28 U.S.C. § 1391(b).
PROCEDURAL BACKGROUND

On March 18, 2008, Plaintiff filed in this court a civil
See Struggs v. Evans, et

21

rights action under 42 U.S.C. § 1983.

22

al., Case No. C 08-1495 MMC (PR).

23

claimed that, in connection with a June 11, 2006 cell search and

24

extraction at SVSP, he was subjected to the use of excessive

25

force, deliberate indifference to his serious medical needs and

26

retaliation by SVSP Defendants Correctional Officers J.

27

Rodriquez, R. Reynoso, T. Woolf and E. Camarena.

28

In that action, Plaintiff

Additionally, Plaintiff raised claims related to a

1

disciplinary hearing held on December 2, 2006, regarding a rules

2

violation for drug possession with which Plaintiff was charged in

3

connection with the June 11, 2006 cell search.
By Order filed August 6, 2010, the Court granted Defendants'

4
5

motion to dismiss as improperly joined the claims concerning

6

Plaintiff's disciplinary hearing.

7

Plaintiff leave to file a new and separate action raising such

8

claims.

9

second amended complaint in Case No. C 08-1495 MMC (PR), the Court

United States District Court
For the Northern District of California

10

When Plaintiff erroneously filed his new complaint as a

ordered the complaint filed as a new and separate action.
Accordingly, the Court now reviews Plaintiff's claims in

11
12

Struggs v. Hedgpeth, Case No. C 11-02191 CW (PR).
DISCUSSION

13
14
15

In so doing, the Court granted

I.

Standard of Review
A federal court must conduct a preliminary screening in any

16

case in which a prisoner seeks redress from a governmental entity

17

or officer or employee of a governmental entity. 28 U.S.C.

18

§ 1915A(a).

19

claims and dismiss any claims that are frivolous, malicious, fail

20

to state a claim upon which relief may be granted or seek monetary

21

relief from a defendant who is immune from such relief.

22

§ 1915A(b)(1), (2).

23

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

24

1988).

In its review, the court must identify any cognizable

Id.

Pro se pleadings must be liberally construed.

25

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

26

allege two essential elements: (1) that a right secured by the

27

Constitution or laws of the United States was violated, and

28
2

1

(2) that the alleged violation was committed by a person acting

2

under the color of state law.

3

(1988).

4

II.

5

West v. Atkins, 487 U.S. 42, 48

Plaintiff's Claims
According to the allegations in the complaint, following a

6

search of Plaintiff's cell in June 2006, Captain G. Ponder, a

7

member of the SVSP classification committee, acted in retaliation

8

for Plaintiff’s having filed administrative grievances against

9

prison officials and held Plaintiff in administrative segregation

United States District Court
For the Northern District of California

10

for sixty days pending an investigation into Plaintiff’s

11

participation in a conspiracy to introduce a controlled substance

12

into the prison.

13

Thereafter, Plaintiff was charged with a serious rules

14

violation for participating in such a conspiracy.

15

requested an investigative employee to assist him with his defense

16

to the charge.

17

employee, arrived to interview Plaintiff, but Plaintiff refused,

18

telling Basso he had postponed his disciplinary hearing pending

19

the results of the referral of charges against him to the District

20

Attorney.

21

right to postpone his hearing and prepare a defense, ignored

22

Plaintiff’s directions and proceeded to interview witnesses and

23

prepare an investigative report.

24

Plaintiff

On July 22, 2006, R. Basso, an investigative

Basso, in retaliation for Plaintiff’s assertion of his

On December 2, 2006, Plaintiff attended a hearing on the rules

25

violation.

Plaintiff informed the Senior Hearing Officer, Lt. E.

26

Moore, that he would not proceed with the hearing because he

27

objected to the use of the information in Basso’s investigative

28

report and he was still waiting for other evidence and to talk to
3

1

witnesses.

2

told Plaintiff that if he didn’t sit down he’d be pepper sprayed.

3

At that point, Plaintiff asked to return to his cell to get his

4

legal papers.

5

returned to his cell and refused to leave.

6

guilty, in absentia, of possession of a controlled substance.

7

When Plaintiff attempted to leave the hearing, Moore

After being granted permission to do so, Plaintiff
Moore found Plaintiff

After Plaintiff was found guilty, Captain Ponder, again acting

8

in retaliation for Plaintiff’s having filed administrative

9

grievances against prison officials, made the decision to hold

United States District Court
For the Northern District of California

10

Plaintiff in administrative segregation.

11

recommended that Plaintiff be moved to the D-yard where, on

12

November 25, 2007, Plaintiff was cut on his upper back by another

13

inmate.

14

Additionally, Ponder

Based on the above allegations, the Court finds Plaintiff has

15

stated cognizable claims for relief against Defendants Basso,

16

Moore and Ponder for retaliation, in violation of the First

17

Amendment, and for the denial of due process at Plaintiff's

18

disciplinary hearing, in violation of the Fourteenth Amendment.
CONCLUSION

19
20

For the foregoing reasons, the Court orders as follows:

21

1.

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

22

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

23

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

24

thereto (docket no. 1) and a copy of this Order to SVSP Defendants

25

R. Basso, E. Moore and G. Ponder.

26

The Clerk of the Court shall also mail a copy of the complaint

27

and a copy of this Order to the State Attorney General's Office in

28

San Francisco.

Additionally, the Clerk shall mail a copy of this
4

1
2

Order to Plaintiff.
2.

Defendants are cautioned that Rule 4 of the Federal Rules

3

of Civil Procedure requires them to cooperate in saving

4

unnecessary costs of service of the summons and complaint.

5

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

6

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

7

service of the summons, fail to do so, they will be required to

8

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

9

failure to sign and return the waiver form.

If service is waived,

United States District Court
For the Northern District of California

10

this action will proceed as if Defendants had been served on the

11

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

12

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

13

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

14

for waiver was sent.

15

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

16

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

17

of the waiver form that more completely describes the duties of

18

the parties with regard to waiver of service of the summons.

19

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

20

Defendants have been personally served, the Answer shall be due

21

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

22

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

23

whichever is later.

24

3.

(This allows a longer time to respond than

If

Defendants shall answer the complaint in accordance with

25

the Federal Rules of Civil Procedure.

26

schedule shall govern dispositive motions in this action:

27
28

a.

The following briefing

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

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

5

1

or other dispositive motion.

2

adequate factual documentation and shall conform in all respects

3

to Federal Rule of Civil Procedure 56.

4

opinion that this case cannot be resolved by summary judgment,

5

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

6

judgment motion is due.

7

promptly served on Plaintiff.

8
9

b.

The motion shall be supported by

If Defendants are of the

All papers filed with the Court shall be

Plaintiff's opposition to the dispositive motion

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

United States District Court
For the Northern District of California

10

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

11

filed.

12

should be given to pro se plaintiffs facing a summary judgment

13

motion:

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The Ninth Circuit has held that the following notice

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
6

1

banc).

2

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

3

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

4

(party opposing summary judgment must come forward with evidence

5

showing triable issues of material fact on every essential element

6

of his claim).

7

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

8

prepared to produce evidence in support of those allegations when

9

he files his opposition to Defendants' dispositive motion.

Plaintiff is cautioned that because he bears the

Such

United States District Court
For the Northern District of California

10

evidence may include sworn declarations from himself and other

11

witnesses to the incident, and copies of documents authenticated

12

by sworn declaration.

13

judgment simply by repeating the allegations of his complaint.

14
15

c.

Plaintiff will not be able to avoid summary

Defendants shall file a reply brief no later than

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

16

d.

The motion shall be deemed submitted as of the date

17

the reply brief is due.

18

unless the Court so orders at a later date.

19

4.

No hearing will be held on the motion

Discovery may be taken in this action in accordance with

20

the Federal Rules of Civil Procedure.

21

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

22

Plaintiff and any other necessary witnesses confined in prison.

23

5.

Leave of the Court pursuant

All communications by Plaintiff with the Court must be

24

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

25

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

26

or Defendants' counsel.

27
28

6.

It is Plaintiff's responsibility to prosecute this case.

Plaintiff must keep the Court informed of any change of address
7

1
2

and must comply with the Court's orders in a timely fashion.
7.

Extensions of time are not favored, though reasonable

3

extensions will be granted.

4

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

5

deadline sought to be extended.

6
7
8

Any motion for an extension of time

IT IS SO ORDERED.
DATED: 10/7/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8

1

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

2
3

CEDRIC LYNN STRUGGS,
4

Case Number: CV11-02191 CW
Plaintiff,

5

CERTIFICATE OF SERVICE
v.

6
A. HEDGPETH et al,
7
Defendant.
8
9
United States District Court
For the Northern District of California

10
11
12

/

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 October 7, 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.

13
14
15
16
17

Cedric Lynn Struggs
Salinas Valley State Prison
C-28615
P.O. Box 1050
D7-130
Soledad, CA 93960-1050

18
Dated: October 7, 2011
19

Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

20
21
22
23
24
25
26
27
28
9