Smith v. Lile

Filing 12

ORDER OF SERVICE. 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 second amended complaint (Docket No. 8), all attachments thereto, and a copy of this order upon Defendant Alex Lile at San Quentin State Prison, (San Quentin, CA 94964). The Clerk shall also mail a copy of this Order to Plaintiff. Habeas Answer or Dispositive Motion due by 7/27/2015. Signed by Judge Edward J. Davila on 5/28/2015. (ecg, COURT STAFF) (Filed on 5/28/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JERRY SMITH,
Plaintiff,

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v.

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ALEX LILE,
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Defendant.
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No. C 14-04648 EJD (PR)
ORDER OF SERVICE; DIRECTING
DEFENDANT 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 pro se civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint was dismissed with

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leave to amend for failing to allege an actual injury. (Docket No. 5 at 2.) Plaintiff’s

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amended complaint is now before the Court for an initial review. (Docket No. 6.)
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

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a claim upon which relief may be granted or seek monetary relief from a defendant who
Order of Service
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is immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must,

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however, be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,

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699 (9th Cir. 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 Alex Lile, the SQSP mailroom supervisor, has

violated his right of access to the courts by repeatedly sending back Plaintiff’s legal

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For the Northern District of California

United States District Court

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mail unprocessed. (Docket No. 6 at 4.) He alleges his lawsuit in Marin County

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Superior Court, Case No. CV1400857, regarding lost property, was dismissed due to

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Lile’s refusal to process his court filings in that case.

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Liberally construed, Plaintiff’s claim is cognizable under § 1983 as a denial of

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his constitutional right to access of the courts. See Lewis v. Casey, 518 U.S. 343, 350

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(1996); Bounds v. Smith, 430 U.S. 817, 821 (1977).

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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

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copy of the second amended complaint (Docket No. 8), all attachments thereto, and a

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copy of this order upon Defendant Alex Lile at San Quentin State Prison, (San

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Quentin, CA 94964). The Clerk shall also 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

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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

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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, fails to do so, he will be required to bear the cost of such service unless good
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this action will proceed as if Defendant had been served on the date that the waiver is

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filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be required to serve

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and file an answer before sixty (60) days from the day 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

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service of summons is necessary.) Defendant is asked to read the statement set forth at

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the foot of the waiver form that more completely describes the duties of the parties with

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

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in the Notice but before Defendant has been personally served, the Answer shall be due

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

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For the Northern District of California

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

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United States District Court

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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, Defendant shall

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file a motion for summary judgment or other dispositive motion with respect to the

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claims 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

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of Civil Procedure. Defendant is advised that summary judgment cannot be granted,

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nor qualified immunity found, if material facts are in dispute. If 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 Defendant files a motion for summary judgment,

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

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

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(en banc). See 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

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

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Defendant’s 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

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

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

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

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For the Northern District of California

United States District Court

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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

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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

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the court informed of any change of address and must comply with the court’s orders in

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a 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:

5/28/2015

EDWARD J. DAVILA
United States District Judge

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Order of Service
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JERRY SMITH,

Case No. 5:14-cv-04648-EJD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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ALEX LILE,
Defendant.

United States District Court
Northern District of California

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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 5/28/2015, 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 Smith ID: H44485
San Quentin State Prison
San Quentin, CA 94974

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Dated: 5/28/2015
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Richard W. Wieking
Clerk, United States District Court

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By:________________________
Elizabeth Garcia, Deputy Clerk to the
Honorable EDWARD J. DAVILA