Pelayo v. Hernandez et al
Filing
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ORDER OF SERVICE; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion. Habeas Answer due by 10/20/2014. Signed by Judge Ronald M. Whyte on 8/20/14. (jgS, COURT STAFF) (Filed on 8/21/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAUL PELAYO,
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Plaintiff,
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v.
G. HERNANDEZ,
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Defendant.
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No. C 13-3618 RMW (PR)
ORDER OF SERVICE; DIRECTING
DEFENDANT TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION
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Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint
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against Correctional Officer G. Hernandez, a prison official at the Correctional Training Facility,
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pursuant to 42 U.S.C. § 1983. For the reasons below, the court orders service upon defendant.
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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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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).
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Order of Service; Directing Defendant to File Dispositive Motion to Notice Regarding Such Motion
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B.
Legal Claim
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Plaintiff claims that Correctional Officer G. Hernandez substantially burdened him from
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practicing Christianity. When plaintiff attempted to explain that his religious faith required him
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to have his bible with him at all times, G. Hernandez began to harass and retaliate against him.
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Liberally construed, plaintiff’s amended complaint states a cognizable claim of a violation of the
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Free Exercise Clause, Religious Land Use and Institutionalized Persons Act, and the First
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Amendment right against retaliation.
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CONCLUSION
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For the foregoing reasons, the court orders as follows:
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1.
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 amended
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complaint and all attachments thereto (docket no. 13), and a copy of this Order to Correctional
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Officer G. Hernandez at CTF. The Clerk of the Court shall also mail a courtesy copy of the
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complaint and a copy of this Order to the California Attorney General’s Office. Additionally,
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the Clerk shall mail a copy of this Order to plaintiff.
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2.
Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure
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requires him to cooperate in saving unnecessary costs of service of the summons and complaint.
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Pursuant to Rule 4, if defendant, 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, fails to do so, he will be required to bear the
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cost of such service unless good cause is shown for his failure to sign and return the waiver
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form. If service is waived, this action will proceed as if defendant had been served on the date
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that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendant 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. If service is waived after the date provided in the Notice but before defendant has been
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personally served, the Answer shall be due sixty (60) days from the date on which the request
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for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is
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later.
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3.
No later than sixty (60) days from the date the waiver is sent, defendant shall file
Order of Service; Directing Defendant to File Dispositive Motion to Notice Regarding Such Motion
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a 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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Any motion for summary judgment shall be supported by adequate factual documentation
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and shall conform in all respects to Rule 56 of the Federal Rules of Civil Procedure. Defendant
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is advised that summary judgment cannot be granted, nor qualified immunity found, if
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material facts are in dispute. If defendant is of the opinion that this case cannot be
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resolved by summary judgment, he shall so inform the court prior to the date the summary
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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 defendant no later than twenty-eight (28) days from the date defendant’s 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).
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5.
Defendant 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 defendant or
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defendant’s counsel, by mailing a true copy of the document to defendant or defendant’s
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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:
RONALD M. WHYTE
United States District Judge
Order of Service; Directing Defendant to File Dispositive Motion to Notice Regarding Such Motion
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
SAUL PELAYO,
Case Number: CV13-03618 RMW
Plaintiff,
CERTIFICATE OF SERVICE
v.
G. HERNANDEZ,
Defendant.
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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 August 21, 2014, 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.
Saul Pelayo P-61090
Correctional Training Facility
CW-304UP
P.O. Box 689
Soledad, CA 93960
Dated: August 21, 2014
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk
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