Diaz v. Perez et al

Filing 4

ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION ORNOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK. 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 M. Perez, David Ambriz, Ross A. Kessler, R. Binkele, and Belinda Hedrick at the Salinas Valley State Prison (P.O. Box 1020, Soledad, CA 93960-1020). 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 For the Northern District of California
Northern District of California

United States District Court
United States District Court

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ENRIQUE DIAZ,

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Plaintiff,

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v.

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M. PEREZ, et al.,
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Defendants.
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No. C 15-02204 EJD (PR)
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 Salinas Valley State Prison (“SVSP”), filed the

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instant civil rights action in pro se pursuant to 42 U.S.C. § 1983, against SVSP

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prison officials. Plaintiff’s motion for leave to proceed in forma pauperis will be

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granted in a separate order.

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DISCUSSION
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
Order of Service
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identify any cognizable claims and dismiss any claims that are frivolous, malicious,

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fail to state a claim upon which relief may be granted or seek monetary relief from a

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defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se

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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

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elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting

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under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
B.

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For the Northern District of California

United States District Court

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Plaintiff’s Claims
According to the complaint, Plaintiff’s cell was searched on October 26 and

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27, 2011, by SVSP correctional officers Aquavia, Garcia, and Bayers; and no

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contraband was found. (Compl. at 3-4.) On November 3, 2011, Plaintiff witnessed

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Correctional Officer L. Hernandez assault his cellmate, and he told Hernandez to

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stop the assault. (Id. at 4.) Defendant Perez warned him to mind his own business.

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Plaintiff reported the assault to the facility captain and hand-delivered a written

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request to Perez requesting that Perez cease intimidating him. (Ibid.) In retaliation,

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Perez “falsified/fabricated” a rule violation report (“RVR”), which was approved by

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Defendant Ambriz. (Ibid.) The RVR charged Plaintiff with possession of inmate-

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manufactured alcohol that was allegedly discovered during the October 27, 2011 cell

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search. (Ibid.) Plaintiff claims that the RVR falsely claimed that Perez had

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conducted the October 27, 2011 cell search; that Perez had discovered inmate-

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manufactured alcohol during the search; that Perez had informed Defendant Ambriz

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of his findings; and that Plaintiff admitted to Perez that the alcohol belong to him.

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(Ibid.)

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At the disciplinary hearing for this RVR, Defendant R. A. Kessler denied

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Plaintiff’s request for witnesses and evidence that would have exonerated Plaintiff,

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and found Plaintiff guilty solely based on Perez’s false statements. (Compl. at 4-5.)
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Plaintiff was assessed 120 days of forfeiture of credits and segregated for 30 days in

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his cell. (Id. at 5.) Kessler also recommended that Plaintiff’s segregation period be

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extended by falsely claiming that Plaintiff had received multiple RVRs in the past

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180 days. (Ibid.) On December 12, 2011, Defendants Binkele and Hedrick

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approved the guilty finding. (Ibid.)

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Liberally construed, Plaintiff states a cognizable due process claim, see Wolff

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v. McDonnell, 418 U.S. 539, 556 (1974), which, if successful, may entitle him to

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compensatory damages or at least nominal damages. See Raditch v. United States,

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929 F.2d 478, 481 n.5 (9th Cir. 1991) (citations omitted). Plaintiff also states a
cognizable retaliation claim, see Rhodes v. Robinson, 408 F.3d 559, 568-69 (9th Cir.

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For the Northern District of California

United States District Court

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2005).

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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 complaint, all attachments thereto, and a copy of this order upon

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Defendants M. Perez, David Ambriz, Ross A. Kessler, R. Binkele, and Belinda

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Hedrick at the Salinas Valley State Prison (P.O. Box 1020, Soledad, CA 93960-

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1020). The Clerk shall also mail a copy of this Order to Plaintiff.

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2.

Defendants are 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 Defendants, after being notified

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of 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

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

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waived, this action will proceed as if Defendants had been served on the date that

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

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required to serve and file an answer before sixty (60) days from the day on which
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the request for waiver was sent. (This allows a longer time to respond than would be

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required if formal service of summons is necessary.) Defendants are asked to read

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the statement set forth at the foot of the waiver form that more completely describes

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the duties of the parties with regard to waiver of service of the summons. If service

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is waived after the date provided in the Notice but before Defendants have been

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personally served, the Answer shall be due sixty (60) days from the date on which

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

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filed, whichever is later.

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3.

No later than ninety (90) days from the date of this order, Defendants

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

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For the Northern District of California

United States District Court

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the claims in the complaint found to be cognizable above.

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a.

If Defendants elect to file a motion to dismiss on the grounds

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Plaintiff failed to exhaust his available administrative remedies as required by 42

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U.S.C. § 1997e(a), Defendants shall do so in an unenumerated Rule 12(b) motion

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pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003), cert. denied

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Alameida v. Terhune, 540 U.S. 810 (2003). The Ninth Circuit has held that

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Plaintiff must be provided with the appropriate warning and notice under

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Wyatt concurrently with Defendants’ motion to dismiss. See Woods v. Carey,

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Nos. 09-15548 & 09-16113, slip op. 7871, 7874 (9th Cir. July 6, 2012).

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b.

Any motion for summary judgment shall be supported by

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

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Federal Rules of Civil Procedure. Defendants are advised that summary judgment

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cannot be granted, nor qualified immunity found, if material facts are in dispute. If

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any Defendant is of the opinion that this case cannot be resolved by summary

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judgment, he shall so inform the Court prior to the date the summary judgment

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motion is due.

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4.

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

Court and served on Defendants no later than twenty-eight (28) days from the date
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Defendants’ motion is filed.

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a.

In the event Defendants file a motion for summary

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judgment, the Ninth Circuit has held that Plaintiff must be concurrently

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provided the appropriate warnings under Rand v. Rowland, 154 F.3d 952, 963

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(9th Cir. 1998) (en banc). See Woods, Nos. 09-15548 & 09-16113, slip op. at

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7874.

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

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

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opposing summary judgment must come forward with evidence showing triable
issues of material fact on every essential element of his claim). Plaintiff is cautioned

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For the Northern District of California

United States District Court

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that failure to file an opposition to Defendants’ motion for summary judgment may

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be deemed to be a consent by Plaintiff to the granting of the motion, and granting of

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judgment against Plaintiff without a trial. See Ghazali v. Moran, 46 F.3d 52, 53-54

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(9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994).

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5.

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

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true 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

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

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orders in a timely fashion. Failure to do so may result in the dismissal of this action

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for failure to 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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For the Northern District of California

United States District Court

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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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ENRIQUE DIAZ,

Case No. 5:15-cv-02204-EJD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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M. PEREZ, et al.,
Defendants.

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.
Enrique Diaz ID: K-70268
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960

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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