Moore v. State of California et al

Filing 11

ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION. Signed by Judge Nathanael Cousins on 3/30/2016. (Attachments: # 1 Certificate/Proof of Service)(lmh, COURT STAFF) (Filed on 3/30/2016)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 DERRICK D. MOORE, Plaintiff, 13 v. 14 15 No. C 15-2687 NC (PR) ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION COUNTY OF ALAMEDA, Defendant. 16 / 17 Plaintiff Derrick D. Moore, a California state prisoner proceeding pro se, filed a 18 19 20 21 second amended civil rights action under 42 U.S.C. § 1983. For the reasons stated below, the court serves the second amended complaint, and directs Defendant to file a dispositive motion or notice regarding such motion. DISCUSSION 22 23 24 25 26 27 28 I. Standard of Review A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that 1 2 a right secured by the Constitution or laws of the United States was violated and (2) that the 3 violation was committed by a person acting under the color of state law. West v. Atkins, 487 4 U.S. 42, 48 (1988). 5 II. 6 Legal Claims In Plaintiff’s second amended complaint, Plaintiff alleges that the County of Alameda 7 is violating his right to equal protection because, while Plaintiff is a state prisoner being 8 housed in a county facility, he is not eligible for 33% work time credits like those inmates 9 housed in a state facility. Also, inmates housed in state prison are afforded cheaper United States District Court For the Northern District of California 10 commissary items and allowed other privileges, whereas Plaintiff not. Liberally construed, 11 these allegations state a cognizable claim that Defendant is violating Plaintiff’s right to equal 12 protection. 13 14 CONCLUSION 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver 15 of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the 16 second amended complaint and all attachments thereto, a magistrate judge consent form, and 17 a copy of this order to the County of Alameda. The Clerk of the court shall also mail a 18 courtesy copy of the second amended complaint and a copy of this order to the Alameda 19 County Counsel, 1221 Oak Street, Suite 450, Oakland CA 94612. Additionally, the Clerk 20 shall mail a copy of this order to Plaintiff. 21 2. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure 22 requires it to cooperate in saving unnecessary costs of service of the summons and complaint. 23 Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the court, on 24 behalf of Plaintiff, to waive service of the summons, fails to do so, it will be required to bear 25 the cost of such service unless good cause be shown for its failure to sign and return the 26 waiver form. If service is waived, this action will proceed as if Defendant had been served 27 on the date that the waiver is filed, and Defendant will not be required to serve and file an 28 answer before sixty (60) days from the date on which the request for waiver was sent. 2 1 Defendant is asked to read the statement set forth at the bottom of the waiver form that more 2 completely describes the duties of the parties with regard to waiver of service of the 3 summons. If service is waived after the date provided in the Notice but before Defendant has 4 been personally served, the Answer shall be due sixty (60) days from the date on which the 5 request for waiver was sent or twenty (20) days from the date the waiver form is filed, 6 whichever is later. 7 3. No later than sixty (60) days from the date the waivers are sent from the court, 8 Defendant shall file a motion for summary judgment or other dispositive motion with respect 9 to the cognizable claim in the second amended complaint. At that time, Defendant shall United States District Court For the Northern District of California 10 also file the magistrate judge consent form. 11 Any motion for summary judgment shall be supported by adequate factual 12 documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil 13 Procedure. Defendant is advised that summary judgment cannot be granted, nor 14 qualified immunity found, if material facts are in dispute. If Defendant is of the opinion 15 that this case cannot be resolved by summary judgment, it shall so inform the court 16 prior to the date the summary judgment motion is due. 17 4. Plaintiff’s opposition to the dispositive motion shall be filed with the court and 18 served on Defendant no later than twenty-eight (28) days from the date Defendant’s motion 19 is filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and 20 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 21 must come forward with evidence showing triable issues of material fact on every essential 22 element of his claim). 23 24 25 26 27 28 5. Defendant shall file a reply brief no later than fourteen (14) days after Plaintiff’s opposition is filed. 6. 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. 7. All communications by the Plaintiff with the court must be served on Defendant or Defendant’s counsel, by mailing a true copy of the document to Defendant or 3 1 2 3 4 Defendant’s counsel. 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. 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 5 court and all parties informed of any change of address and must comply with the court’s 6 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 7 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 8 9 IT IS SO ORDERED. United States District Court For the Northern District of California 10 11 DATED: March 30, 2016 NATHANAEL M. COUSINS United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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