Robertson v. Nonsteel et al

Filing 15

ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK. Signed by Judge Jeremy Fogel on 7/28/11. (dlm, COURT STAFF) (Filed on 8/5/2011)

Download PDF
1 2 3 4 5 6 7 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 REGINALD ROBERTSON, Plaintiff, 13 14 vs. 15 N. BONSTEEL, et al., 16 Defendants. 17 No. C 11-01437 JF (PR) ) ) ) ) ) ) ) ) ) ) ) ) ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK 18 Plaintiff, a prisoner currently incarcerated at the Santa Rita Jail in Dublin, 19 20 California, filed the instant civil rights action in pro se pursuant to 42 U.S.C. § 1983 21 against jail officials. Plaintiff’s motions for leave to proceed in forma pauperis, (Docket 22 Nos. 2 & 5), will be granted in a separate order. 23 DISCUSSION 24 25 26 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 28 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify Order of Dismissal with Leave to Amend P:\PRO-SE\SJ.JF\CR.11\01437Robertson_svc.wpd 1 1 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 2 claim upon which relief may be granted or seek monetary relief from a defendant who is 3 immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be 4 liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 5 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 11 B. Plaintiff’s Claims According to the complaint, Plaintiff alleges that while he was detained at the 12 Glenn Dyer Detention Facility in Oakland, California, Defendant Deputy N. Bonsteel 13 “refused to accept and/or process” his outgoing legal mail. (Compl. at 3.) Plaintiff 14 claims that all Bonsteel was required to do was perform a “visual inspection[] for 15 contraband” and place his badge number on the envelope, but that he “simply refused.” 16 (Id.) Plaintiff claims this denial violated his rights under the U.S. Constitution. (Id.) 17 Liberally construed, Plaintiff’s claim is cognizable as violating his First Amendment right 18 to send and receive mail. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). 19 CONCLUSION 20 21 For the reasons stated above, the Court orders as follows: 22 1. The Clerk of the Court shall issue summons and the United States Marshal 23 shall serve, without prepayment of fees, a copy of the complaint in this matter, all 24 attachments thereto, and a copy of this order upon Defendant Deputy N. Bonsteel at the 25 Alameda County Sheriff’s Office (Internal Affairs Section, 1401 Lakeside Drive, 7th 26 Floor, Oakland, California, 94612). 27 28 Defendant “Alameda County Sheriff Office” is DISMISSED as a party in this action as Plaintiff makes no allegations against this defendant. The Clerk shall terminate Order of Dismissal with Leave to Amend P:\PRO-SE\SJ.JF\CR.11\01437Robertson_svc.wpd 2 1 this defendant from this action. 2. 2 No later than sixty (60) days from the date of this order, Defendants shall 3 file a motion for summary judgment or other dispositive motion with respect to the claims 4 in the complaint found to be cognizable above, or, within such time, notify the Court that 5 Defendants are of the opinion that this case cannot be resolved by such a motion. a. 6 If Defendants elect to file a motion to dismiss on the grounds that 7 Plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. 8 § 1997e(a), Defendants shall do so in an unenumerated Rule 12(b) motion pursuant to 9 Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003), cert. denied Alameida v. 10 Terhune, 540 U.S. 810 (2003). 11 b. Any motion for summary judgment shall be supported by adequate 12 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 13 Civil Procedure. Defendants are advised that summary judgment cannot be granted, 14 nor qualified immunity found, if material facts are in dispute. If Defendants are of 15 the opinion that this case cannot be resolved by summary judgment, they shall so 16 inform the Court prior to the date the summary judgment motion is due. 3. 17 Plaintiff’s opposition to the dispositive motion shall be filed with the Court 18 and served on Defendants no later than thirty (30) days from the date Defendant’s 19 motion is filed. 20 a. 21 In the event Defendants file an unenumerated motion to dismiss under Rule 12(b), Plaintiff is hereby cautioned as follows:1 The Defendants have made a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, on the ground you have not exhausted your administrative remedies. The motion will, if granted, result in the dismissal of your case. When a party you are suing makes a motion to dismiss for failure to exhaust, and that motion is properly supported by declarations (or other sworn testimony) and/or documents, you may not simply rely on what your complaint says. Instead, you must set out specific 22 23 24 25 26 27 28 1 The following notice is adapted from the summary judgment notice to be given to pro se prisoners as set forth in Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See Wyatt v. Terhune, 315 F.3d at 1120 n.14. Order of Dismissal with Leave to Amend P:\PRO-SE\SJ.JF\CR.11\01437Robertson_svc.wpd 3 1 2 3 facts in declarations, depositions, answers to interrogatories, or documents, that contradict the facts shown in the Defendant’s declarations and documents and show that you have in fact exhausted your claims. If you do not submit your own evidence in opposition, the motion to dismiss, if appropriate, may be granted and the case dismissed. b. 4 5 6 7 8 9 10 11 12 13 14 15 In the event Defendants file a motion for summary judgment, the Ninth Circuit has held that the following notice should be given to Plaintiff: 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 defendants’ 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 defendants, your case will be dismissed and there will be no trial. 16 See Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). 17 Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and 18 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 19 must come forward with evidence showing triable issues of material fact on every 20 essential element of his claim). Plaintiff is cautioned that failure to file an opposition to 21 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 22 the granting of the motion, and granting of judgment against plaintiff without a trial. See 23 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 24 F.3d 651, 653 (9th Cir. 1994). 25 4. Defendants shall file a reply brief no later than fifteen (15) days after 26 Plaintiff’s opposition is filed. 27 5. The motion shall be deemed submitted as of the date the reply brief is due. 28 Order of Dismissal with Leave to Amend P:\PRO-SE\SJ.JF\CR.11\01437Robertson_svc.wpd 4 1 2 No hearing will be held on the motion unless the Court so orders at a later date. 6. All communications by the Plaintiff with the Court must be served on 3 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 4 copy of the document to Defendant or Defendant’s counsel. 5 6 7 7. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further Court order is required before the parties may conduct discovery. 8. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 8 Court informed of any change of address and must comply with the Court’s orders in a 9 timely fashion. Failure to do so may result in the dismissal of this action for failure to 10 11 12 prosecute pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. DATED: 7/28/11 JEREMY FOGEL United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order of Service P:\PRO-SE\SJ.JF\CR.11\01437Robertson_svc.wpd 5 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA REGINALD ROBERTSON, Case Number: CV11-01437 JF Plaintiff, CERTIFICATE OF SERVICE v. N. BONSTEEL, et al., Defendants. / 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 8/5/11 , 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. Reginald Robertson APM873 5325 Broder Blvd. Dublin, CA 94568 Dated: 8/5/11 Richard W. Wieking, Clerk

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?