(PC) Jones v. Lemon ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TERRELL JONES, Case No. 22-cv-07202-SVK 8 Plaintiff, ORDER OF SERVICE v. 9 10 T. LEMON, et al., Defendants. 11 12 INTRODUCTION 13 Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C. § 14 1983 against the Chief Deputy Warden and another official at Salinas Valley State Prison 15 (“SVSP”), where Plaintiff is housed.1 Plaintiff’s application to proceed in forma pauperis is 16 granted in a separate order. For the reasons explained below, the complaint is ordered served upon 17 Defendants. 18 STANDARD OF REVIEW 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 21 § 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion 22 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 23 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 24 relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica 25 Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 27 1 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 2 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 3 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to 4 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 5 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 6 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 7 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 8 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 1974. 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 10 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 11 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 12 42, 48 (1988). 13 LEGAL CLAIMS 14 Plaintiff alleges that prison policy does not allow him to buy certain food items that female 15 inmates are allowed to buy. Plaintiff claims that this constitutes gender discrimination, in 16 violation of his constitutional right to equal protection. When liberally construed, Plaintiff’s 17 allegations state a cognizable claim for relief under Section 1983 for the violation of Plaintiff’s 18 rights under the Equal Protection Clause. 19 CONCLUSION 20 1. Defendants Warden Chief Deputy Warden T. Lemon and Associate Director Howard 21 Mosely shall be served at the Salinas Valley State Prison. 22 Service shall proceed under the California Department of Corrections and Rehabilitation’s 23 (CDCR) e-service program for civil rights cases from prisoners in CDCR custody. In accordance 24 with the program, the Clerk is directed to serve on CDCR via email the following documents: the 25 Complaint, a Magistrate Judge jurisdiction consent form, this Order, a CDCR Report of E-Service 26 Waiver form, and a summons. The Clerk also shall serve a copy of this Order on the Plaintiff. 27 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 1 the Court a completed CDCR Report of E-Service Waiver advising the Court which Defendant(s) 2 listed in this order will be waiving service of process without the need for service by the United 3 States Marshal Service (USMS) and which Defendant(s) decline to waive service or could not be 4 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 5 California Attorney General’s Office which, within 21 days, shall file with the Court a waiver of 6 service of process for the Defendant(s) who are waiving service. 7 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 8 Defendant who has not waived service according to the CDCR Report of E-Service Waiver a 9 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 10 of this Order, the summons, and the operative complaint for service upon each Defendant who has 11 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 12 Service Waiver. 13 2. Defendants shall complete and file the Magistrate Judge jurisdiction consent form 14 within the deadline provided on the form. They shall also file an answer in accordance with the 15 Federal Rules of Civil Procedure. 16 3. To expedite the resolution of this case: 17 a. No later than 91 days from the date this order is issued, Defendants shall file a 18 motion for summary judgment or other dispositive motion. The motion shall be supported by 19 adequate factual documentation and shall conform in all respects to Federal Rule of Civil 20 Procedure 56 and shall include as exhibits all records and incident reports stemming from the events at issue. If Defendants are of the opinion that this case cannot be resolved by summary 21 judgment, they shall so inform the Court prior to the date the summary judgment motion is due. 22 All papers filed with the Court shall be promptly served on Plaintiff. 23 b. At the time the dispositive motion is served, Defendants shall also serve, on a 24 separate paper, the appropriate notice required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th 25 Cir. 1998) (en banc). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012). 26 c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 27 1 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him 2 pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc). 3 d. Defendants shall file a reply brief no later than 14 days after the opposition is 4 || filed. 5 e. The motion shall be deemed submitted as of the date the reply brief is due. No 6 || hearing will be held on the motion unless the Court so orders at a later date. 7 4. All communications by Plaintiff with the Court must be served on Defendants or 8 their counsel once counsel has been designated, by mailing a true copy of the document to 9 Defendants or their counsel. 10 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. ll No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 2 parties may conduct discovery. E B Plaintiff is reminded that state prisoners inmates may review all non-confidential material 14 in their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783 (Cal. Ct. App. 5 15 1974), 15 California Code of Regulations § 3370, and the CDCR’s Department Operations 16 Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. Requests to 5 review these files or for copies of materials in them must be made directly to prison officials, not 5 18 to the Court. 19 6. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 20) informed of any change of address by filing a separate paper with the clerk headed “Notice of Change of Address.” He also must comply with the Court's orders in a timely fashion. Failure to 9 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 73 Civil Procedure 41(b). Reasonable requests for an extension of a deadline will be allowed upon a showing of good cause if the request is filed prior to the deadline. 25 SO ORDERED. 6 Dated: December 5, 2022 Sees eK SUSAN VAN KEULEN 28 United States Magistrate Judge 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If Defendant moves for summary judgment, he is seeking to have your case dismissed. A 3 motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly 9 supported by declarations (or other sworn testimony), you cannot simply rely on what your 10 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 11 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 12 shown in Defendant's declarations and documents and show that there is a genuine issue of 13 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 14 if appropriate, may be entered against you. If summary judgment is granted, your case will be 15 dismissed and there will be no trial. 16 17 18 19 20 21 22 23 24 25 26 27