Ray v. Cantil et al

Filing 4

ORDER OF SERVICE SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION ORNOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK. Dispositive Motion due by 5/9/2018. Responses due by 6/6/2018. Replies due by 6/20/2018. Signed by Judge Edward J. Davila on 2/7/2018. (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 2/7/2018)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 EDWARD VINCENT RAY, JR., United States District Court Northern District of California 11 Case No. 17-05398 EJD (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK v. 13 14 SAKAUYE CANTIL, et al., Defendants. 15 16 17 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 18 19 pursuant to 42 U.S.C. § 1983 against Chief Justice Cantil-Sakauye of the Supreme Court 20 of California, the California Supreme Court Clerk Robert R. Toy, and Judge Frank Roesch 21 of the Alameda County Superior Court. Plaintiff’s motion for leave to proceed in forma 22 pauperis shall be addressed in a separate order. 23 DISCUSSION 24 25 26 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 28 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 5 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. 10 Plaintiff’s Claims Plaintiff claims on January 4, 2016, Judge Frank Roesch of the Alameda County United States District Court Northern District of California 11 Superior Court placed him on the “Vexatious Litigant List.” (Compl. at 3.) Plaintiff 12 claims that he has filed at least 3 applications to be removed from the “List,” but the court 13 refuses to hear the application. (Id.) Petitioner claims that on August 10, 2017, he 14 attempted to file a petition for writ of mandamus in the California Supreme Court which 15 was denied because Plaintiff was on the “List.” (Id.) Plaintiff claims that Defendant 16 Robert R. Toy, a deputy clerk at the Supreme Court of California, denied him access to the 17 courts by refusing to file Plaintiff’s petition for writ of mandamus in the state high court 18 even though the petition is not a civil lawsuit and therefore outside the parameters of the 19 vexatious litigant statute. (Id. at 3-4.) Plaintiff claims Justice Cantil-Sakauye of the 20 Supreme Court of California returned the petition without citation, resulting in a due 21 process violation. Plaintiff seeks prospective injunctive and declaratory relief “to be 22 removed from the vexatious litigant list.” (Id. at 3.) 23 Although judges are absolutely immune from civil liability for damages for acts 24 performed in their judicial capacity, see Pierson v. Ray, 386 U.S. 547, 553-55 (1967) 25 (applying judicial immunity to actions under 42 U.S.C. § 1983), the doctrine of judicial 26 immunity does not bar claims for injunctive relief in § 1983 actions against state judges. 27 See Pulliam v. Allen, 466 U.S. 522, 541-42 (1984); Ashelman v. Pope, 793 F.2d 1072, 28 2 1075 (9th Cir. 1986) (en banc). However section 1983 itself provides that “in any action 2 brought against a judicial officer for an act or omission taken in such officer’s judicial 3 capacity, injunctive relief shall not be granted unless a declaratory decree was violated or 4 declaratory relief was unavailable.” 42 U.S.C. § 1983. This bar is limited to injunctive 5 relief for acts taken in a judicial capacity, and not for acts taken in any other capacity. See 6 Wolfe v. Strankman, 392 F.3d 358, 366-67 (9th Cir. 2004) (dismissal not warranted under 7 § 1983’s bar on injunctive relief against judicial officers where plaintiff sued California 8 Chief Justice in his administrative capacity as Chair of the Judicial Council of California). 9 Here, however, it is unclear whether judicial immunity bars this action for injunctive relief 10 where the decision being challenged may not have been purely adjudicative. Id. at 365-66 11 United States District Court Northern District of California 1 (role of a judge under California’s Vexatious Litigant Statute cannot be characterized 12 simply because, among other things, the statute grants a judge the power to impose, on his 13 or her own motion, a prefiling order prohibiting a vexatious litigant from filing new 14 litigation without the court’s permission, and such an action may not be purely that of a 15 neutral adjudicator). Accordingly, liberally construed, it appears that Plaintiff states a 16 cognizable claim for the denial of his right to petition the government for redress of 17 grievances and due process against Defendants. 18 CONCLUSION 19 20 For the reasons state above, the Court orders as follows: 21 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 22 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 23 of the complaint, all attachments thereto, and a copy of this order upon Defendants Judge 24 Frank Roesch at the Alameda County Superior Court, and Deputy Clerk Robert R. 25 Toy and Justice Cantil-Sakauye at the Supreme Court of California. The Clerk shall 26 also mail a copy of this Order to Plaintiff. 27 28 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 3 Procedure requires them to cooperate in saving unnecessary costs of service of the 2 summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this 3 action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail 4 to do so, they will be required to bear the cost of such service unless good cause shown for 5 their failure to sign and return the waiver form. If service is waived, this action will 6 proceed as if Defendants had been served on the date that the waiver is filed, except that 7 pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer 8 before sixty (60) days from the day on which the request for waiver was sent. (This 9 allows a longer time to respond than would be required if formal service of summons is 10 necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 11 United States District Court Northern District of California 1 form that more completely describes the duties of the parties with regard to waiver of 12 service of the summons. If service is waived after the date provided in the Notice but 13 before Defendants have been personally served, the Answer shall be due sixty (60) days 14 from the date on which the request for waiver was sent or twenty (20) days from the date 15 the waiver form is filed, whichever is later. 16 3. No later than ninety-one (91) days from the date of this order, Defendants 17 shall file a motion for summary judgment or other dispositive motion with respect to the 18 claims in the complaint found to be cognizable above. 19 a. Any motion for summary judgment shall be supported by adequate 20 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 21 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 22 qualified immunity found, if material facts are in dispute. If any Defendant is of the 23 opinion that this case cannot be resolved by summary judgment, he shall so inform the 24 Court prior to the date the summary judgment motion is due. 25 b. In the event Defendants file a motion for summary judgment, the 26 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 27 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 28 4 1 2 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 3 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 4 motion is filed. Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 6 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 7 must come forward with evidence showing triable issues of material fact on every essential 8 element of his claim). Plaintiff is cautioned that failure to file an opposition to 9 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 10 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 11 United States District Court Northern District of California 5 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 12 F.3d 651, 653 (9th Cir. 1994). 13 14 15 16 17 5. Defendants 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 18 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 19 copy of the document to Defendants or Defendants’ counsel. 20 8. Discovery may be taken in accordance with the Federal Rules of Civil 21 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 22 Rule 16-1 is required before the parties may conduct discovery. 23 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 24 court informed of any change of address and must comply with the court’s orders in a 25 timely fashion. Failure to do so may result in the dismissal of this action for failure to 26 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 27 28 10. Extensions of time must be filed no later than the deadline sought to be 5 1 2 extended and must be accompanied by a showing of good cause. IT IS SO ORDERED. 3 4 2/7/2018 Dated: _____________________ ________________________ EDWARD J. DAVILA United States District Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Order of Service PRO-SE\EJD\CR.17\05398Ray_svc 26 27 28 6

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