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