Smith v. Pasley et al

Filing 4

ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK. Habeas Answer or Dispositive Motion due by 10/6/2014. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint, all attachments thereto, and a copy of this order upon Defendants T. Pasley, Office Assistant, and Alex Lile, Mail Room Supervisor, at San Quentin State Prison, (San Quentin, CA 94964). The Clerk shall also mail a copy of this Order to Plaintiff. Signed by Judge Edward J. Davila on 8/5/2014.(ecg, COURT STAFF) (Filed on 8/5/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JERRY SMITH,
Plaintiff,

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v.

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T. PASLEY, et. al.,
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Defendants.
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No. C 14-01779 EJD (PR)

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

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Plaintiff, a state prisoner at San Quentin State Prison, filed the instant civil rights

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action in pro se pursuant to 42 U.S.C. § 1983. Plaintiff’s motion for leave to proceed in

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forma pauperis will be granted in a separate written 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

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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
Order of Service
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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.

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Plaintiff’s Claims
Plaintiff claims that Defendant T. Pasley interfered with his outgoing legal mail

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during May and June 2013. (Compl. at 3.) According to the attached papers, Defendant

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Pasley returned Plaintiff’s mail to him with a request to submit Non Sufficient Funds

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(“NSF”) envelopes to cover the cost of postage. Plaintiff claims that after he notified the

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mail room that he never received NSF envelopes, he received no response. He later

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interviewed with mailroom supervisor, Defendant Alex Lile, and notified her of the

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incident. Liberally construed, Plaintiff states a cognizable claim under the First

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Amendment. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh

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v. Abbott, 490 U.S. 401, 407 (1989)).

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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 mail a Notice of Lawsuit and Request for

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

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of the complaint, all attachments thereto, and a copy of this order upon Defendants T.

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Pasley, Office Assistant, and Alex Lile, Mail Room Supervisor, at San Quentin State

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Prison, (San Quentin, CA 94964). The Clerk shall also mail a copy of this Order to

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Plaintiff.

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2.

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Defendants are cautioned that Rule 4 of the Federal Rules of Civil

Procedure requires them to cooperate in saving unnecessary costs of service of the
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summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of

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this action and asked by the Court, on behalf of Plaintiff, to waive service of the

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summons, fail to do so, they will be required to bear the cost of such service unless good

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cause shown for their failure to sign and return the waiver form. If service is waived, this

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action will proceed as if Defendants had been served on the date that the waiver is filed,

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except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file

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an answer before sixty (60) days from the day on which the request for waiver was sent.

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(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 foot of

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

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waiver of service of the summons. If service is waived after the date provided in the

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Notice but before Defendants have been personally served, the Answer shall be due sixty

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

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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

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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.
a.

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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, nor

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qualified immunity found, if material facts are in dispute. If any Defendant is of the

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

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Court prior to the date the summary judgment motion is due.
b.

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In the event Defendants file a motion for summary judgment, the

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Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate

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warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See

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Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012).

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4.

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

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

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motion is filed.

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Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure

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and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary

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judgment must come forward with evidence showing triable issues of material fact on

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every essential element of his claim). Plaintiff is cautioned that failure to file an

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opposition to Defendants’ motion for summary judgment may be deemed to be a consent

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by Plaintiff to the granting of the motion, and granting of judgment against Plaintiff

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without a trial. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam);

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Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994).
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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

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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 Defendants or Defendants’ counsel.

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8.

Discovery may be taken in accordance with the Federal Rules of Civil

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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or

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Local Rule 16-1 is required before the parties may conduct discovery.

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9.

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).

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10.

Extensions of time must be filed no later than the deadline sought to be

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extended and must be accompanied by a showing of good cause.

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DATED:

8/5/2014

EDWARD J. DAVILA
United States District Judge

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Order of Service
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JERRY SMITH,

Case Number: CV14-01779 EJD

Plaintiff,

CERTIFICATE OF SERVICE

v.
T. PASLEY, 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.
8/5/2014
That on
, 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.

Jerry Eugene Smith H-44485
San Quentin State Prison
San Quentin, CA 94964
Dated:

8/5/2014

Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk