Clark v. Martel

Filing 40

ORDER REVIEWING AMENDED COMPLAINT, ORDER OF SERVICE. Dispositive Motion due by 5/6/2014. Signed by Judge Yvonne Gonzalez Rogers on 3/7/2014. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 3/7/2014)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

DOUGLAS DANIEL CLARK,

4
5
6
7

No. C 11-3520 YGR (pr)

Plaintiff,

ORDER REVIEWING AMENDED
COMPLAINT, ORDERING SERVICE OF
COGNIZABLE CLAIM; DISMISSING
ALL REMAINING NON-COGNIZABLE
CLAIMS; AND ADDRESSING
PLAINTIFF'S PENDING MOTIONS

v.
KEVIN CHAPPELL, Warden,
Defendant.
/

8
9
United States District Court
For the Northern District of California

10

INTRODUCTION
On July 18, 2011, Plaintiff Douglas Daniel Clark, an inmate on death row at San Quentin

11

State Prison ("SQSP"), filed a pro se civil rights complaint under 42 U.S.C. § 1983 in which he

12

complained about limitations on his inmate appeal activity at SQSP. A month later, Plaintiff filed

13

another complaint, using the same above-referenced case number. However, in his second

14

complaint, Plaintiff complained about an improper use of chaplains at SQSP.

15

In an Order dated November 8, 2011, the Court dismissed Plaintiff's two complaints and

16

granted him leave to file an amended complaint. The Court found that Plaintiff's complaints violated

17

Federal Rule of Civil Procedure 8, stating:

18
19
20
21
22
23
24
25
26
27
28

The complaints here do not comply with Rule 8(e). There are not simple, concise
and direct averments, and instead the rambling pleadings have some facts
intertwined with much legal argument and irrelevant surplusage. The amended
complaint must comply with Rule 8.
(Nov. 8, 2011 Order at 3.) The Court also directed Plaintiff to state each claim separately in his
amended complaint, to state clearly his desire if he wished to challenge a prison policy, and to assert
only claims for violations of his own rights, i.e., not those of other inmates. As to his complaint
concerning the inmate appeal limits, the Court found that Plaintiff failed to state a claim for relief for
a denial of access to the courts because he did not allege an actual injury. The Court further found
that Plaintiff's claim concerning limits on his inmate appeals did not state a retaliation claim.
Finally, the Court directed Plaintiff to allege more clearly his claim about improper use of chaplains.
The Court specifically explained what Plaintiff needed to do to correct the aforementioned pleading

1

deficiencies. (Id. at 2-5.)

2

Plaintiff's amended complaint is now before the Court for its consideration. Plaintiff

3

originally named the former SQSP Warden Michael Martel as Defendant, but now he names current

4

SQSP Warden Kevin Chappell as well as the Secretary of the California Department of Corrections

5

and Rehabilitation, Matthew Cate.

6

Also before the Court are the following motions filed by Plaintiff, entitled:

7

(1) "Motion/Proposal to Move this Case Forward Toward a Prompt and Simple Resolution . . . [and]

8

Request for the Judge to Finally File the Matter and Order Parties to Meet For a Settlement

9

Conference Immediately"; (2) "Motion to Update Name of Defendant Warden and Change Name of

United States District Court
For the Northern District of California

10

Martel to Chappell"; and (3) "Request for Explanation Why the Judge Ignored the U.S.C.A. 9th

11

Circuit Court's Order Voiding the Judge's Order1 Refusing to File My Properly and Timely Filed

12

'Amended Complaint.'" (Docket Nos. 36, 37, 39.) The Court construes Plaintiff's aforementioned

13

motions (1) and (3) as a request to screen the amended complaint, and GRANTS his request by

14

reviewing the amended complaint below. The portion of motion (1) requesting that the Court set

15

this matter for a settlement conference is DENIED as premature. Finally, Plaintiff's motion (2) is

16

construed as a request to amend the complaint to substitute the name of Defendant from the former

17

warden, Defendant Martel, to the current warden, Defendant Chappell. Plaintiff's request is

18

GRANTED. The Clerk of the Court is directed to substitute Defendant Chappell as a named

19

Defendant in place of Defendant Martel.

20
21
1

22
23
24
25
26
27
28

The Court notes that Plaintiff is incorrect in stating that the Ninth Circuit Court of Appeals
"Void[ed] the Judge's Order." (Docket Nos. 39.) The instant civil rights action was initially
dismissed without prejudice by on August 29, 2012. This Court had concluded that dismissal was
required because Plaintiff failed to submit a timely amended complaint by the August 24, 2012
deadline. Thereafter, on September 4, 2012, Plaintiff sought reconsideration of the dismissal. On
January 29, 2013, Plaintiff filed a notice of appeal with the Ninth Circuit. On February 4, 2013, the
Ninth Circuit issued an order holding the appeal proceedings "in abeyance pending the district
court's resolution of the pending September 4, 2012 motion." (Ninth Circuit Feb. 4, 2013 Order at
1.) In an Order dated April 23, 2013, this Court granted Plaintiff's motion for reconsideration and
reopened this action. (Docket No. 32.) Because this case was reopened, the Ninth Circuit dismissed
Plaintiff's appeal for lack of jurisdiction. (Docket No. 33.)
2

1

The Court shall now review the amended complaint pursuant to 28 U.S.C. § 1915A(a).

2

DISCUSSION

3

I.

4

Standard of Review
A federal court must engage in a preliminary screening of any case in which a prisoner seeks

5

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

6

§ 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

7

which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

8

monetary relief from a defendant who is immune from such relief. See id. at §1915A(b)(1),(2). Pro

9

se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

United States District Court
For the Northern District of California

10

(9th Cir. 1990).

11

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right

12

secured by the Constitution or laws of the United States was violated and (2) that the violation was

13

committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48

14

(1988).

15

II.

Legal Claims

16

A.

17

In his amended complaint, Plaintiff brings forth only one claim -- a challenge to a prison

18

policy limiting his inmate appeals as set forth in SQSP's Operational Procedure 608 and Section

19

3084.4(a)(1)-(4) of Title 15 of the California Code of Regulations. Plaintiff claims that in 2011, the

20

SQSP policy -- currently in effect and "created by the signature of Defendant Chappell" -- "slash[ed]

21

[Plaintiff's] right to appeal any adverse event" because the policy limits his right to file a prison

22

grievance to "one issue, in one appeal, in any two weeks time." (Am. Compl. at 1.) Thus, Plaintiff

23

claims his First Amendment right to seek redress was violated when he attempted to file four inmate

24

appeals in one week, but was prevented from doing so. (Id., Attach. at 8.)

25

First Amendment Claim

The right of meaningful access to the courts extends to established prison grievance

26

procedures. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995); accord Hines v. Gomez, 853 F.

27

Supp. 329, 331-32 (N.D. Cal. 1994). This right is subsumed under the First Amendment right to

28

petition the government for redress of grievances, see id. at 333, and protects both the filing, see id.,
3

1

and content, see Bradley, 64 F.3d at 1279, of prison grievances. Regulations which punish an

2

inmate for using "hostile, sexual, abusive or threatening" language in a written grievance, for

3

example, are not reasonably related to penological interests and therefore violate the First

4

Amendment. See id. at 1279-82.

5

Here, Plaintiff may bring a First Amendment challenge to a prison policy limiting his inmate

6

appeals on the ground that the policy is not reasonably related to legitimate penological interests.

7

See Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003) (applying Turner v. Safley, 482 U.S. 78, 89

8

(1987)). Liberally construed, Plaintiff's aforementioned allegations state a cognizable First

9

Amendment claim under section 1983 and will be served on Defendant Chappell. See id.

United States District Court
For the Northern District of California

10

B.

11

At most, it appears that Plaintiff is attempting to impose liability on Defendant Cate based on

Claims Against Defendant Cate

12

the conduct of his subordinate, i.e., Defendant Chappell. However, there is no respondeat superior

13

liability under section 1983, meaning that a defendant generally cannot be held responsible for the

14

actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A

15

supervisor generally "is only liable for constitutional violations of his subordinates if the supervisor

16

participated in or directed the violations, or knew of the violations and failed to act to prevent them."

17

Id. Here, Plaintiff's amended complaint fails to allege supervisory liability against Defendant Cate

18

under the standards explained above. Accordingly, the claims against Defendant Cate are

19

DISMISSED without prejudice and without further leave to amend.

20

CONCLUSION

21

For the reasons outlined above, the Court orders as follows:

22

1.

Plaintiff's claims against Defendant Cate are DISMISSED.

23

2.

Plaintiff states a cognizable First Amendment claim against Defendant Chappell.

24

3.

All remaining claims are DISMISSED for failure to correct pleading deficiencies.

25

4.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

26

Service of Summons, two copies of the Waiver of Service of Summons, a copy of the amended

27

complaint and all attachments thereto (Docket No. 21-1) and a copy of this Order to Defendant

28

SQSP Warden Kevin Chappell. The Clerk shall also mail a copy of the amended complaint and a
4

1

copy of this Order to the California State Attorney General's Office. Additionally, the Clerk shall

2

mail a copy of this Order to Plaintiff.

3

5.

Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires

him to cooperate in saving unnecessary costs of service of the summons and amended complaint.

5

Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the Court, on behalf

6

of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of

7

such service unless good cause be shown for their failure to sign and return the waiver form. If

8

service is waived, this action will proceed as if Defendant had been served on the date that the

9

waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be required to serve and

10
United States District Court
For the Northern District of California

4

file an answer before sixty (60) days from the date on which the request for waiver was sent. (This

11

allows a longer time to respond than would be required if formal service of summons is necessary.)

12

Defendant is asked to read the statement set forth at the foot of the waiver form that more

13

completely describes the duties of the parties with regard to waiver of service of the summons. If

14

service is waived after the date provided in the Notice but before Defendant has been personally

15

served, the Answer shall be due sixty (60) days from the date on which the request for waiver was

16

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

17
18

6.

Defendant shall answer the amended complaint in accordance with the Federal Rules

of Civil Procedure. The following briefing schedule shall govern dispositive motions in this action:

19

a.

No later than sixty (60) days from the date their answer is due, Defendant

20

shall file a motion for summary judgment or other dispositive motion. The motion must be

21

supported by adequate factual documentation, must conform in all respects to Federal Rule of Civil

22

Procedure 56, and must include as exhibits all records and incident reports stemming from the

23

events at issue. A motion for summary judgment also must be accompanied by a Rand2 notice so

24

that Plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose

25

the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand

26

must be served concurrently with motion for summary judgment). A motion to dismiss for failure to

27
28
2

Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
5

1

exhaust available administrative remedies must be accompanied by a similar notice. Stratton v.

2

Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out in

3

Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), must be served concurrently with motion to

4

dismiss for failure to exhaust available administrative remedies).

5

If Defendant is of the opinion that this case cannot be resolved by summary judgment, he

6

shall so inform the Court prior to the date the summary judgment motion is due. All papers filed

7

with the Court shall be promptly served on Plaintiff.

8
9
United States District Court
For the Northern District of California

10
11

b.

Plaintiff's opposition to the dispositive motion shall be filed with the Court

and served on Defendant no later than twenty-eight (28) days after the date on which Defendant's
motion is filed.
c.

Plaintiff is advised that a motion for summary judgment under Rule 56 of the

12

Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do

13

in order to oppose a motion for summary judgment. Generally, summary judgment must be granted

14

when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that

15

would affect the result of your case, the party who asked for summary judgment is entitled to

16

judgment as a matter of law, which will end your case. When a party you are suing makes a motion

17

for summary judgment that is properly supported by declarations (or other sworn testimony), you

18

cannot simply rely on what your amended complaint says. Instead, you must set out specific facts in

19

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

20

Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show

21

that there is a genuine issue of material fact for trial. If you do not submit your own evidence in

22

opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is

23

granted, your case will be dismissed and there will be no trial. Rand, 154 F.3d at 962-63.

24

Plaintiff also is advised that a motion to dismiss for failure to exhaust available

25

administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without

26

prejudice. You must "develop a record" and present it in your opposition in ordeerr to dispute any

27

"factual record" presented by the defendants in their motion to dismiss. Wyatt, 315 F.3d at 1120

28

n.14. You have the right to present any evidence to show that you did exhaust your available
6

1

administrative remedies before coming to federal court. Such evidence may include:

2

(1) declarations, which are statements signed under penalty of perjury by you or others who have

3

personal knowledge of relevant matters; (2) authenticated documents -- documents accompanied by

4

a declaration showing where they came from and why they are authentic, or other sworn papers such

5

as answers to interrogatories or depositions; (3) statements in your amended complaint insofar as

6

they were made under penalty of perjury and they show that you have personal knowledge of the

7

matters state therein. In considering a motion to dismiss for failure to exhaust, the court can decide

8

disputed issues of fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09.

9

(The Rand and Wyatt/Stratton notices above do not excuse Defendant's obligation to serve

United States District Court
For the Northern District of California

10

said notices again concurrently with motions to dismiss for failure to exhaust available

11

administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.)

12
13

d.

date Plaintiff's opposition is filed.

14
15
16

Defendant shall file a reply brief no later than fourteen (14) days after the

e.

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.
7.

Discovery may be taken in this action in accordance with the Federal Rules of Civil

17

Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendant to depose

18

Plaintiff and any other necessary witnesses confined in prison.

19
20
21

8.

All communications by Plaintiff with the Court must be served on Defendant or his

counsel, once counsel has been designated, by mailing a true copy of the document to them.
9.

It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

22

informed of any change of address and must comply with the Court's orders in a timely fashion.

23

Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes

24

while an action is pending must promptly file a notice of change of address specifying the new

25

address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail

26

directed to the pro se party by the Court has been returned to the Court as not deliverable, and

27

(2) the Court fails to receive within sixty days of this return a written communication from the pro

28

se party indicating a current address. See L.R. 3-11(b).
7

1

10.

Extensions of time are not favored, though reasonable extensions will be granted.

2

Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

3

deadline sought to be extended.

4

11.

The Court construes Plaintiff's "Motion/Proposal to Move this Case Forward Toward

5

a Prompt and Simple Resolution . . . [and] Request for the Judge to Finally File the Matter and Order

6

Parties to Meet For a Settlement Conference Immediately" and "Request for Explanation Why the

7

Judge Ignored the U.S.C.A. 9th Circuit Court's Order Voiding the Judge's Order Refusing to File My

8

Properly and Timely Filed 'Amended Complaint'" (Docket Nos. 36, 39) as a request to screen the

9

amended complaint, and GRANTS his request. The portion of the former motion (Docket No. 36)

United States District Court
For the Northern District of California

10
11

requesting that the Court set this matter for a settlement conference is DENIED as premature.
12.

The Court GRANTS Plaintiff's "Motion to Update Name of Defendant Warden and

12

Change Name of Martel to Chappell" (Docket No. 37), which has been construed as a request to

13

amend the complaint to substitute the name of Defendant from the former warden, Defendant

14

Martel, to the current warden, Defendant Chappell. The Clerk is directed to substitute Defendant

15

Chappell as a named Defendant in place of Defendant Martel.

16

13.

This Order terminates Docket Nos. 36, 37 and 39.

17
18

DATED:

March 7, 2014
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

19
20
21
22
23
24
25
26
27
28

P:\PRO-SE\YGR\CR.11\Clark3520.revAC&pendMOTS.wpd

8