Smith v. Valencia et al

Filing 10

ORDER OF SERVICE Habeas Answer or Dispositive Motion due by 7/7/2017.. Signed by Magistrate Judge Kandis A. Westmore on 5/8/17. (Attachments: # 1 Certificate/Proof of Service)(sisS, COURT STAFF) (Filed on 5/8/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LAJAZZ A. SMITH, Case No. 16-cv-06577-KAW (PR) Plaintiff, 8 ORDER SERVING COGNIZABLE CLAIM v. 9 10 L. VALENCIA, Defendant. United States District Court Northern District of California 11 12 13 Plaintiff Lajazz Smith, a state prisoner incarcerated at Salinas Valley State Prison, has filed 14 a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the violation of her constitutional 15 rights by Correctional Officer L. Valencia. Plaintiff has consented to the jurisdiction of the 16 undersigned United States Magistrate Judge over this action. Plaintiff’s motion for leave to 17 proceed in forma pauperis is granted in a separate order. The Court now reviews Plaintiff’s 18 complaint. DISCUSSION 19 20 21 22 23 24 25 26 27 28 I. Preliminary Review of Complaint 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. 28 U.S.C. § 1915A(a). 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. Id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 1 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 2 statement need only “‘give the defendant fair notice of what the . . . claim is and the grounds upon 3 which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 5 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 6 the alleged violation was committed by a person acting under the color of state law. West v. 7 Atkins, 487 U.S. 42, 48 (1988). 8 9 Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the plaintiff can show that the defendant’s actions both actually and proximately caused the deprivation of a federally protected right. Lemire v. Cal. Dept. Corrections & Rehabilitation, 756 11 United States District Court Northern District of California 10 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 12 II. Plaintiff’s Claims 13 Plaintiff’s complaint alleges the following: Plaintiff is a transgender individual. Officer 14 Valencia discriminates against Plaintiff on the basis of her gender. For instance, Officer Valencia 15 harasses Plaintiff on a daily basis by calling her “bitches/gay, fags and boys” and tells other 16 inmates how Plaintiff was raped. Valencia has put Plaintiff “on the wall” and dug her nails into 17 Plaintiff’s right arm. 18 Liberally construed, the allegations appear to give rise to a cognizable Fourteenth 19 Amendment equal protection claim and a cognizable Eighth Amendment excessive force claim. CONCLUSION 20 21 Based on the foregoing, the Court issues the following Orders: 22 1. Liberally construed, the allegations appear to give rise to a cognizable Fourteenth 23 Amendment equal protection claim and a cognizable Eighth Amendment excessive force claim 24 against Officer Valencia. 25 2. 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 complaint 27 (docket no. 1) and all attachments thereto, a copy of this Order, and a copy of the form “Consent 28 or Declination to Magistrate Judge Jurisdiction” to Officer L. Valencia at Salinas Valley State 2 1 Prison. This form can also be found at The Clerk shall also 2 mail a copy of the complaint and a copy of this Order to the State Attorney General’s Office in 3 San Francisco, and a copy of this Order to Plaintiff. 4 3. 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 complaint. Pursuant to 6 Rule 4, if Defendant, after being notified of this action and asked by the Court, on behalf of 7 Plaintiff, to waive service of the summons, fails to do so, he will be required to bear the cost of 8 such service unless good cause be shown for his failure to sign and return the waiver forms. If 9 service is waived, this action will proceed as if Defendant had been served on the date that the 10 waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), Defendant will not be required to 11 United States District Court Northern District of California 5 serve and file an answer before sixty days from the date on which the request for waiver was sent. 12 (This allows a longer time to respond than would be required if formal service of summons is 13 necessary.) 14 Defendant is advised to read the statement set forth at the foot of the waiver form that more 15 completely describes the duties of the parties with regard to waiver of service of the summons. If 16 service is waived after the date provided in the Notice but before Defendant has been personally 17 served, the answer shall be due sixty days from the date on which the request for waiver was sent 18 or twenty days from the date the waiver form is filed, whichever is later. 19 20 21 4. Defendant shall file his Consent or Declination to Magistrate Judge Jurisdiction on or before the date his answer is due. 5. The following briefing schedule shall govern dispositive motions in this action: a. No later than thirty days from the date his answer is due, Defendant shall file a 22 23 motion for summary judgment or other dispositive motion. If Defendant files a motion for 24 summary judgment, it shall be supported by adequate factual documentation and shall conform in 25 all respects to Federal Rule of Civil Procedure 56. If Defendant is of the opinion that this case 26 cannot be resolved by summary judgment, he shall so inform the Court prior to the date the 27 summary judgment motion is due. All papers filed with the Court shall be promptly served on 28 Plaintiff. 3 1 At the time of filing the motion for summary judgment or other dispositive motion, 2 Defendant shall comply with the Ninth Circuit’s decision in Woods v. Carey, 684 F.3d 934 (9th 3 Cir. 2012), and provide Plaintiff with notice of what is required of him to oppose a summary 4 judgment motion. If the motion is based on non-exhaustion of administrative remedies, 5 Defendants must comply with the notice and procedural requirements in Albino v. Baca, 747 F.3d 6 1162 (9th Cir. 2014). See Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012). 7 b. Plaintiff’s opposition to the motion for summary judgment or other dispositive 8 motion shall be filed with the Court and served on Defendant no later than twenty-eight days after 9 the date on which Defendant’s motion is filed. The Ninth Circuit has held that the following notice 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 should be given to pro se plaintiffs facing a summary judgment motion: The defendants have 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. Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). Before filing his opposition, Plaintiff is advised to read the notice that will be provided to 23 him by Defendant when the motion is filed, and Rule 56 of the Federal Rules of Civil Procedure 24 and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come 25 forward with evidence showing triable issues of material fact on every essential element of his 26 claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this 27 case, he must be prepared to produce evidence in support of those allegations when he files his 28 opposition to Defendant’s summary judgment motion. Such evidence may include sworn 4 1 declarations from himself and other witnesses to the incident, copies of documents authenticated 2 by sworn declaration or discovery. Plaintiff will not be able to avoid summary judgment simply 3 by repeating the allegations of his complaint. 4 The same evidentiary requirement applies if the defendants file a motion for summary 5 judgment for failure to exhaust administrative remedies. To oppose this motion, Plaintiff must 6 present any evidence he may have which tends to show that he did exhaust administrative 7 remedies or was excused from doing so. Again, the evidence may be in the form of declarations, 8 that is statements of fact from himself or other witnesses signed under penalty of perjury, copies of 9 documents accompanied by a declaration showing where they came from and why they are authentic, or discovery documents such as answers to interrogatories or depositions. In 11 United States District Court Northern District of California 10 considering a summary judgment motion for failure to exhaust administrative remedies, the Court 12 can decide disputed issues of fact with regard to this portion of the case. See generally Albino, 13 747 F.3d at 1172-73; Stratton, 697 F.3d at 1008. 14 15 16 17 18 c. Defendant shall file a reply brief no later than fourteen days after the date Plaintiff’s opposition is filed. 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. 6. Discovery may be taken in this action in accordance with the Federal Rules of Civil 19 Procedure. No further court order pursuant to Rule 30(a)(2) or Local Rule 16 is required before 20 the parties may conduct discovery. 21 7. All communications by Plaintiff with the Court must be served on Defendant, or 22 Defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 23 Defendant or his counsel. 24 8. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 25 informed of any change of address by filing a separate paper with the clerk headed “Notice of 26 Change of Address,” and must comply with the Court's orders in a timely fashion. Failure to do so 27 may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 28 Procedure 41(b). 5 1 9. Extensions of time are not favored, though reasonable extensions will be granted. Any 2 motion for an extension of time must be filed no later than three days prior to the deadline sought 3 to be extended. 4 5 6 7 8 IT IS SO ORDERED. Dated: May 6, 2017 ______________________________________ KANDIS A. WESTMORE United States Magistrate Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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