France v. Allman et al
Filing
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ORDER OF SERVICE AND DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE THAT SUCH MOTION IS UNWARRANTED. Signed by Judge Paul S. Grewal on 3/30/2016. (ofr, COURT STAFF) (Filed on 3/30/2016) (Additional attachment(s) added on 3/30/2016: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).
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IN THE UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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MICHAEL RAY FRANCE,
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Plaintiff,
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v.
SHERIFF THOMAS D. ALLMAN, et al.,
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Defendants.
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Case No. C 15-4078 PSG (PR)
ORDER OF SERVICE AND
DIRECTING DEFENDANTS TO
FILE DISPOSITIVE MOTION
OR NOTICE THAT SUCH
MOTION IS UNWARRANTED
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Michael Ray France, proceeding pro se, filed an amended civil rights complaint pursuant
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to 42 U.S.C. § 1983. For the reasons stated below, the court serves the amended complaint and
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directs defendants to file a dispositive motion or notice that such motion is unwarranted.
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I. DISCUSSION
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A.
Standard of Review
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A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity.1 In its
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review, the court must identify any cognizable claims and dismiss any claims that are frivolous,
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malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a
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See 28 U.S.C. § 1915A(a).
Case No. C 15-4078 PSG (PR)
ORDER OF DISMISSAL WITH LEAVE TO AMEND
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defendant who is immune from such relief.2 Pro se pleadings must, however, be liberally
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construed.3
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:
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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that
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the alleged deprivation was committed by a person acting under the color of state law.4
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B.
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France’s Claims
France alleges that on April 2, 2014, he was brought into Mendocino County Jail, where
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he is currently housed. France was thrown into a dirty safety cell, and then moved to
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administrative segregation, where he has remained with no justification. France also alleges that
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while he was in administrative segregation, he has been denied religious meals. France names as
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defendants Sheriff Thomas D. Allman, Captain Pearce, Sergeant Studor, and Lieutenant Bednar.
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Liberally construed, France has stated cognizable claims of cruel and unusual punishment and a
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violation of the free exercise of his religion.
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II. CONCLUSION
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1.
The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of
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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the amended
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complaint and all attachments thereto, a Magistrate Judge consent form, and a copy of this order
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to Sheriff Thomas D. Allman, Captain Pearce, Sergeant Studor, and Lieutenant Bednar at
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the Mendocino County Jail. The Clerk also shall mail a courtesy copy of the complaint and a
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copy of this order to the Clerk of the Board of Supervisors, 501 Low Gap Road, Room 1010
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Ukiah, CA 95482.
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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 summons and complaint.
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See 28 U.S.C. § 1915A(b)(1), (2).
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See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
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See West v. Atkins, 487 U.S. 42, 48 (1988).
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Case No. C 15-4078 PSG (PR)
ORDER OF DISMISSAL WITH LEAVE TO AMEND
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Pursuant to Rule 4, if defendants, after being notified of this action and asked by the court, on
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behalf of France, to waive service of the summons, fail to do so, they will be required to bear the
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cost of such service unless good cause be shown for their failure to sign and return the waiver
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form. If service is waived, this action will proceed as if defendants had been served on the date
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that the waiver is filed, except that pursuant to Fed. R. Civ. P. 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 date on which the request for
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waiver was sent. Defendants are asked to read the statement set forth at the bottom of the waiver
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form that more completely describes the duties of the parties with regard to waiver of service of
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the summons. If service is waived after the date provided in the Notice but before defendants
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have been personally served, the answer shall be due sixty (60) days from the date on which the
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request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever
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is later.
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3.
No later than sixty (60) days from the date the waiver is sent, defendants shall file
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one comprehensive motion for summary judgment or other dispositive motion with respect to the
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cognizable claims in the amended complaint. At that time, defendants shall also submit the
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Magistrate Judge’s consent form.
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Any motion for summary judgment shall be supported by adequate factual documentation
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and shall conform in all respects to Fed. R. Civ. P. 56. Defendants are advised that summary
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judgment cannot be granted, nor qualified immunity found, if material facts are in dispute. If
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defendants are of the opinion that this case cannot be resolved by summary judgment, they shall
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so inform the court prior to the date the summary judgment motion is due.
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4.
France’s opposition to the dispositive motion shall be filed with the court and
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served on defendants no later than twenty-eight (28) days from the date defendants’ motion is
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filed. France is advised to read Rule 56 and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
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(holding party opposing summary judgment must come forward with evidence showing triable
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issues of material fact on every essential element of his claim).
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5.
Defendants shall file a reply brief no later than fourteen (14) days after France’s
opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due.
Case No. C 15-4078 PSG (PR)
ORDER OF DISMISSAL WITH LEAVE TO AMEND
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No hearing will be held on the motion unless the court so orders at a later date.
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All communications by France with the court must be served on defendants or
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defendants’ counsel, by mailing a true copy of the document to defendants or defendants’
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counsel.
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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.
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It is France’s responsibility to prosecute this case. France must keep the court
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and all parties 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 prosecute
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pursuant to Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.
DATED: 3/30/2016
PAUL S. GREWAL
United States Magistrate Judge
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Case No. C 15-4078 PSG (PR)
ORDER OF DISMISSAL WITH LEAVE TO AMEND
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