Hardaway v. Chavez-Epperson et al

Filing 9

Order of Partial Dismissal; ORDER OF SERVICE; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion. Dispositive Motion due by 6/25/2013. Amended Complaint due by 4/29/2013. Signed by Judge Ronald M. Whyte on 3/27/13. (jg, COURT STAFF) (Filed on 3/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SONNY RAY HARDAWAY,

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Plaintiff,

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v.
M,. CHAVEZ-EPPERSON, et al.,

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Defendants.

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No. C 12-5459 RMW (PR)
ORDER OF PARTIAL DISMISSAL;
ORDER OF SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION

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Plaintiff, a state prisoner proceeding pro se, filed a federal civil rights complaint pursuant
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to 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis in a separate
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order. For the reasons that follow, the Court DISMISSES the complaint in part, and serves the
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remainder of the complaint.
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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 id. § 1915A(b)(1),
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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police

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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 deprivation was committed by a person acting under the color of state law. West v.

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

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B.

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Plaintiff’s Claims
Plaintiff sues two mailroom employees. The statement of facts allege several events

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which took place between February 23, 2012, and August 1, 2012. Liberally construed, plaintiff

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states a cognizable claim of a violation of his First Amendment rights to send and receive mail.

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Plaintiff’s remaining claims of conspiracy, discrimination, fraud, harassment, tampering,

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retaliation, and invasion of privacy are conclusory, and thus, DISMISSED with leave to amend.

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Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim

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showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement

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need only “‘give the defendant fair notice of what the . . . . claim is and the grounds upon which

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it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). If plaintiff believes in

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good faith that he can state a claim for relief for these allegations in compliance with Rule 8(a),

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he may file an amended complaint within thirty days from the filing date of this order.

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CONCLUSION

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For the foregoing reasons, the court orders:

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1.

Plaintiff’s conspiracy, discrimination, fraud, harassment, tampering, retaliation,

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and invasion of privacy claims are DISMISSED with leave to amend. If plaintiff wishes to

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amend his complaint to include these claims, he must file an AMENDED COMPLAINT within

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thirty days of the filing date of this order. The amended complaint must include the caption and

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civil case number used in this order (C 12-5459 RMW (PR)) and the words AMENDED

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COMPLAINT on the first page. Plaintiff may not incorporate material from the prior complaint

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by reference. Failure to file an amended complaint within thirty days and in accordance

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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with this order will result in the court proceeding with only the claim regarding a violation

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of plaintiff’s First Amendment’s right to send and receive mail. “[A] plaintiff waives all

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causes of action alleged in the original complaint which are not alleged in the amended

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complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981). Defendants not

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named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 F.2d

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1258, 1262 (9th Cir. 1992).

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2.

The clerk of the court shall mail a Notice of Lawsuit and Request for Waiver of

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

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and all attachments thereto (docket no. 1), and a copy of this order to Mailroom Supervisor M.

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Chavez-Epperson and Mailroom Employee L. Matsuno at SVSP.
The clerk of the court shall also mail a courtesy copy of the complaint and a copy of this

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order to the California Attorney General’s Office. Additionally, the clerk shall mail a copy of

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this order to plaintiff.

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3.

Defendants are 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 defendants, after being notified of this action and asked by the court, on

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behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear

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

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form. If service is waived, this action will proceed as if defendants had been served on the date

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that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendants will not be required

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to serve and file an answer before sixty (60) days from the date on which the request for waiver

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was sent. (This allows a longer time to respond than would be required if formal service of

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summons is necessary.) Defendants are asked to read the statement set forth at the bottom of the

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waiver form that more completely describes the duties of the parties with regard to waiver of

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service of the summons. If service is waived after the date provided in the Notice but before

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defendants have been personally served, the Answer shall be due sixty (60) days from the date

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on which the request for waiver was sent or twenty (20) days from the date the waiver form is

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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filed, whichever is later.

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4.

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 claim

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in the 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).

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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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5.

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 Celotex

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Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come

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

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claim).

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6.

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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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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9.

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:
RONALD M. WHYTE
United States District Judge

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Order of Service; Directing Defendants to File Disposition Motion
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G:\PRO-SE\SJ.Rmw\CR.12\Hardaway450dissrv.wpd

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

SONNY RAY HARDAWAY,

Case Number: CV12-05459 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
M. CHAVEZ-EPPERSON et al,
Defendant.

/

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 March 27, 2013, 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.

Sonny Ray Hardaway P-45579
Kern Valley State Prison
PO Box 5102
134-101
Delano, CA 93216
Dated: March 27, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk