Furnace v. Giurbino et al

Filing 46

ORDER OF SERVICE; ORDER DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION Dispositive Motion due by 5/8/2013.. Signed by Judge Lucy H. Koh on 2/6/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 2/7/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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EDWARD T. FURNACE,

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Plaintiff,

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v.
G. GIURBINO, et al.,

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Defendants.

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No. C 12-0873 LHK (PR)
ORDER OF SERVICE;
ORDER DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION

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Plaintiff, a state prisoner proceeding pro se, filed a second amended civil rights
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complaint against prison officials at Salinas Valley State Prison pursuant to 42 U.S.C. § 1983.
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For the reasons stated below, the Court and orders service upon the Defendant G. Giurbino, the
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only named Defendant not yet served.
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DISCUSSION
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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity. See
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28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss
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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or
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seek monetary relief from a Defendant who is immune from such relief. See 28 U.S.C.
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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.
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Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. See West v.

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Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff alleges that he has been improperly assigned to the Secured Housing Unit for an

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indefinite amount of time. Plaintiff claims that Defendants Martinez and Valdez, Institutional

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Gang Investigators, retaliated against him for litigating an unrelated federal case, Furnace v.

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Evans, No. 06-4229 MMC (PR), by initiating a gang validation procedure. According to

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Plaintiff, Valdez and Martinez proffered that they had evidence linking Plaintiff to the Black

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Guerrilla Family (“BGF”) prison gang. Defendants K. Berkler, R.S. Marquez, and E.W. Fischer

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ultimately validated Plaintiff as an active member of the BGF. Plaintiff argues that the evidence

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used to validate him was insufficient. Plaintiff also alleges that Defendant Giurbino is liable as a

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supervisor. Liberally construed, Plaintiff has stated cognizable claims of a right against

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retaliation, violations of his right to due process and the Equal Protection Clause, and a violation

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of his First Amendment rights.

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To the extent Plaintiff claims that Defendants violated the Eighth Amendment, that claim

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is DISMISSED for failure to state a claim. An indeterminate sentence in administrative

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segregation, without more, does not constitute cruel and unusual punishment in violation of the

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Eighth Amendment. See Anderson v. County of Kern, 45 F.3d 1310, 1315-16 (9th Cir. 1995) (no

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contact with any other inmate in administrative segregation, either for exercise, day room access

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or otherwise not cruel and unusual punishment); Toussaint v. Yockey, 722 F.2d 1490, 1494 n.6

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(9th Cir. 1984) (more than usual hardships associated with administrative segregation required to

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state Eighth Amendment claim).

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CONCLUSION

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For the foregoing reasons, the Court hereby orders as follows:

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1.

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

Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the second

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amended complaint and all attachments thereto (docket no. 43), and a copy of this Order to

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Director G. Giurbino at the California Department of Corrections and Rehabilitation.

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The Clerk of the Court shall also mail a courtesy copy of the second amended complaint

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and a copy of this Order to the California Attorney General’s Office. Additionally, the Clerk

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shall mail a copy of this Order to Plaintiff.

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2.

Defendant Giurbino cautioned that Rule 4 of the Federal Rules of Civil Procedure

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requires them to cooperate in saving unnecessary costs of service of the summons and complaint.

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

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Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required

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to bear the cost of such service unless good cause be shown for their failure to sign and return

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the waiver form. If service is waived, this action will proceed as if Defendant Giurbino had been

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served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant

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Giurbino will not be required to serve and file an answer before sixty (60) days from the date on

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which the request for waiver was sent. (This allows a longer time to respond than would be

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required if formal service of summons is necessary.) Defendant Giurbino is asked to read the

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statement set forth at the bottom of the waiver form that more completely describes the duties of

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the parties with regard to waiver of service of the summons. If service is waived after the date

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provided in the Notice but before Defendant Giurbino has been personally served, the Answer

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shall be due sixty (60) days from the date on which the request for waiver was sent or twenty

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

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3.

No later than ninety (90) days from the date of this order, Defendants shall file a

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

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in the second amended complaint.

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a.

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

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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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Defendants shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315

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F.3d 1108, 1119-20 (9th Cir. 2003).
Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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b.

Any motion for summary judgment shall be supported by adequate factual

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

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Procedure. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If Defendants are of the opinion

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

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prior to the date the summary judgment motion is due.

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4.

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

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served on Defendants no later than twenty-eight (28) days from the date Defendants’ motion is

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filed. 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 must

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come forward with evidence showing triable issues of material fact on every essential element of

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his claim).

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5.

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

Plaintiff’s opposition is filed.
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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.
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All communications by the Plaintiff with the Court must be served on Defendants

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or Defendants’ counsel, by mailing a true copy of the document to Defendants or Defendants’

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counsel.

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8.

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 Court

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and all parties 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 prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

2/6/13

LUCY H. KOH
United States District Judge
Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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