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)

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NOT FOR CITATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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REGINALD ROBERTSON,
Plaintiff,

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vs.

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N. BONSTEEL, et al.,
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Defendants.
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No. C 11-01437 JF (PR)

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ORDER OF SERVICE; DIRECTING
DEFENDANT TO FILE DISPOSITIVE
MOTION OR NOTICE REGARDING
SUCH MOTION; INSTRUCTIONS TO
CLERK

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Plaintiff, a prisoner currently incarcerated at the Santa Rita Jail in Dublin,

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California, filed the instant civil rights action in pro se pursuant to 42 U.S.C. § 1983

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against jail officials. Plaintiff’s motions for leave to proceed in forma pauperis, (Docket

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Nos. 2 & 5), will be granted in a separate order.

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DISCUSSION

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A.

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

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify
Order of Dismissal with Leave to Amend
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any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a

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claim upon which relief may be granted or seek monetary relief from a defendant who is

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immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be

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liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1988).
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 violation was committed by a person acting under the

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

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B.

Plaintiff’s Claims
According to the complaint, Plaintiff alleges that while he was detained at the

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Glenn Dyer Detention Facility in Oakland, California, Defendant Deputy N. Bonsteel

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“refused to accept and/or process” his outgoing legal mail. (Compl. at 3.) Plaintiff

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claims that all Bonsteel was required to do was perform a “visual inspection[] for

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contraband” and place his badge number on the envelope, but that he “simply refused.”

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(Id.) Plaintiff claims this denial violated his rights under the U.S. Constitution. (Id.)

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Liberally construed, Plaintiff’s claim is cognizable as violating his First Amendment right

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to send and receive mail. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995).

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CONCLUSION

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

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1.

The Clerk of the Court shall issue summons and the United States Marshal

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shall serve, without prepayment of fees, a copy of the complaint in this matter, all

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attachments thereto, and a copy of this order upon Defendant Deputy N. Bonsteel at the

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Alameda County Sheriff’s Office (Internal Affairs Section, 1401 Lakeside Drive, 7th

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Floor, Oakland, California, 94612).

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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
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this defendant from this action.
2.

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No later than sixty (60) days from the date of this order, Defendants shall

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file a motion for summary judgment or other dispositive motion with respect to the claims

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in the complaint found to be cognizable above, or, within such time, notify the Court that

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Defendants are of the opinion that this case cannot be resolved by such a motion.
a.

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If Defendants elect to file a motion to dismiss on the grounds that

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Plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C.

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§ 1997e(a), Defendants shall do so in an unenumerated Rule 12(b) motion pursuant to

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Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003), cert. denied Alameida v.

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Terhune, 540 U.S. 810 (2003).

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b.

Any motion for summary judgment shall be supported by adequate

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factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of

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Civil Procedure. Defendants are advised that summary judgment cannot be granted,

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nor qualified immunity found, if material facts are in dispute. If Defendants are of

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the opinion that this case cannot be resolved by summary judgment, they shall so

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inform the Court prior to the date the summary judgment motion is due.
3.

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

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and served on Defendants no later than thirty (30) days from the date Defendant’s

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motion is filed.

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a.

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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

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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
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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.

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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.

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See Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc).
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Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and
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Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment
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must come forward with evidence showing triable issues of material fact on every
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essential element of his claim). Plaintiff is cautioned that failure to file an opposition to
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Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to
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the granting of the motion, and granting of judgment against plaintiff without a trial. See
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Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18
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F.3d 651, 653 (9th Cir. 1994).
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4.

Defendants shall file a reply brief no later than fifteen (15) days after

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Plaintiff’s opposition is filed.
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5.

The motion shall be deemed submitted as of the date the reply brief is due.

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Order of Dismissal with Leave to Amend
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No hearing will be held on the motion unless the Court so orders at a later date.
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All communications by the Plaintiff with the Court must be served on

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Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true

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copy of the document to Defendant or Defendant’s counsel.

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

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Court informed of any change of address and must comply with the Court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to

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prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
DATED:

7/28/11

JEREMY FOGEL
United States District Judge

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Order of Service
P:\PRO-SE\SJ.JF\CR.11\01437Robertson_svc.wpd

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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.

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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