Smith v. Jackson et al

Filing 4

ORDER OF SERVICE; TERMINATING DEFENDANT CHAPELL FROM THIS ACTION; DIRECTING DEFENDANT JACKSON TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK. The Clerk of the Court shall mail a Notice of Lawsuit and Request fo r 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 Defendant S. Jackson at San Quentin State Prison, (San Quentin, CA 94964). The Clerk shall also mail a copy of this Order to Plaintiff. The Clerk shall terminate Defendant Kevin Chapell from this action as there are no claims against him. ***Kevin Chapell terminated. Habeas Answer or Dispositive Motion due by 10/6/2014. 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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S. JACKSON, et. al.,
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Defendants.
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No. C 14-01938 EJD (PR)

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ORDER OF SERVICE; TERMINATING
DEFENDANT CHAPELL FROM THIS
ACTION; DIRECTING DEFENDANT
JACKSON 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

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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

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Plaintiff claims that his right to due process was violated during a disciplinary

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hearing on February 8, 2013, when the senior hearing officer, Defendant S. Jackson,

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failed to provide Plaintiff with a “detail[ed] written statement... as to the evidence relied

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on [ ] for the disciplinary actions.” (Compl. at 3.) Plaintiff was found guilty of

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“possession of gambling paraphernalia” and assessed 30 days forfeiture of credit.

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Liberally construed, Plaintiff states a cognizable procedural due process claim under

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Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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Plaintiff also names Warden Kevin Chapell as a defendant, claiming he was made

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aware of Plaintiff’s claim against Defendant Jackson, but makes no further factual

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allegations against him. A supervisor may be liable under section 1983 upon a showing

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of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal

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connection between the supervisor's wrongful conduct and the constitutional violation.

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Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652

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F.3d 1202, 1207 (9th Cir. 2011)); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

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Liability may be imposed on an individual defendant under § 1983 only if Plaintiff can

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show that the defendant proximately caused the deprivation of a federally protected right.

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See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664

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F.2d 1121, 1125 (9th Cir. 1981). Plaintiff makes no allegation that Warden Chapell was

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either directly involved in the disciplinary hearing at issue or was in any way directly
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involved with the alleged misconduct by Defendant Jackson. Furthermore, under no

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circumstances is there respondeat superior liability under section 1983. Or, in layman's

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terms, under no circumstances is there liability under section 1983 solely because one is

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responsible for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989). Accordingly, Defendant Chapell is DISMISSED from this action

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for Plaintiff’s failure to state a claim against him.

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CONCLUSION

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For the reasons stated above, the Court orders as follows:
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 Defendant S.

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Jackson at San Quentin State Prison, (San Quentin, CA 94964). The Clerk shall also

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mail a copy of this Order to Plaintiff.

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The Clerk shall terminate Defendant Kevin Chapell from this action as there are no
claims against him.
2.

Defendant is cautioned that Rule 4 of the Federal Rules of Civil

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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 Defendant, after being notified of this

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

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fails to do so, he will be required to bear the cost of such service unless good cause shown

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

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proceed as if Defendant had been served on the date that the waiver is filed, except that

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pursuant to Rule 12(a)(1)(B), Defendant will not be required to serve and file an answer

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

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allows a longer time to respond than would be required if formal service of summons is

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necessary.) Defendant is asked to read the statement set forth at the foot of the waiver

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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

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before Defendant has been personally served, the Answer shall be due sixty (60) days

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

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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, Defendant 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

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

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Civil Procedure. Defendant is advised that summary judgment cannot be granted, nor

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

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

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

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In the event Defendant files 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 Defendant no later than twenty-eight (28) days from the date Defendant’s

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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 Defendant’s 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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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

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Defendant, or Defendant’s 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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8.

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

Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or
Local Rule 16-1 is required before the parties may conduct discovery.
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

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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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JERRY SMITH,

Case Number: CV14-01938 EJD

Plaintiff,

CERTIFICATE OF SERVICE

v.
S. JACKSON, 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