Johnson v. Perez-Pantoja ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GLENN JOHNSON, Case No. 20-cv-04798-JST 8 Plaintiff, ORDER OF SERVICE v. 9 10 I. PEREZ-PANTOJA, Defendant. 11 12 13 Plaintiff, an inmate at Correctional Training Facility – Central, in Soledad, California 14 (“CTF”) has filed a pro se action pursuant to 42 U.S.C. § 1983 alleging that CTF correctional 15 officer I. Perez-Pantoja violated his constitutional rights. His complaint (ECF No. 1) is now 16 before the Court for review under 28 U.S.C. § 1915A. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police 25 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 3 plaintiff’s obligation to provide the grounds of his ‘entitle[ment] to relief’ requires more than 4 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . 5 . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 7 proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 570. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 9 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 10 the alleged violation was committed by a person acting under the color of state law. See West v. 11 Atkins, 487 U.S. 42, 48 (1988). 12 B. Complaint 13 The complaint makes the following allegations. In March 2018, plaintiff filed a civil rights 14 complaint against defendant Perez, in Case No. 3:18-cv-05421 JST, Johnson v. Perez-Pantoja 15 (“Johnson I”). After the Court issued an order screening the complaint and ordering service on 16 defendant Perez-Pantoja in Johnson I, defendant retaliated against plaintiff by filing a false rules 17 violation report against plaintiff alleging that plaintiff refused to accept assigned housing and 18 delayed a peace officer, and by searching plaintiff’s cell and destroying plaintiff’s personal 19 property. Defendant repeatedly threatened plaintiff that he would not live comfortably in X-Wing 20 Housing Unit because he had filed Johnson I. ECF No. 1 at 7. The complaint states a cognizable 21 states a cognizable First Amendment retaliation claim against defendant Perez-Pantoja. Rhodes v. 22 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of 23 First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 24 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and 25 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 26 did not reasonably advance a legitimate correctional goal.”) (footnote omitted). 27 CONCLUSION 1 1. Liberally construed, the complaint states a cognizable First Amendment claim and 2 a cognizable First Amendment retaliation claim against defendant CTF officer I. Perez-Pantoja. 3 2. The Clerk shall issue summons and the United States Marshal shall serve, without 4 prepayment of fees, a copy of the complaint (ECF No. 1), with all attachments thereto, and a copy 5 of this order upon defendant I. Perez-Pantoja at Correctional Training Facility, Soledad 6 Prison Road, Soledad CA 93960. A courtesy copy of the complaint with attachments and this 7 order shall also be mailed to the California Attorney General’s Office. 8 3. In order to expedite the resolution of this case, the Court orders as follows: 9 a. No later than 91 days from the date this order is filed, defendant must file 10 and serve a motion for summary judgment or other dispositive motion. If defendant is of the 11 opinion that this case cannot be resolved by summary judgment, defendant must so inform the 12 Court prior to the date the motion is due. A motion for summary judgment also must be 13 accompanied by a Rand notice so that plaintiff will have fair, timely, and adequate notice of what 14 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 15 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 16 served concurrently with motion for summary judgment).1 17 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 18 must be filed with the Court and served upon defendant no later than 28 days from the date the 19 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 20 provided later in this order as he prepares his opposition to any motion for summary judgment. 21 c. Defendant shall file a reply brief no later than 14 days after the date the 22 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 23 hearing will be held on the motion. 24 25 1 If defendant asserts that plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), defendant must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) 27 (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that 1 4. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 2 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 3 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 4 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 5 any fact that would affect the result of your case, the party who asked for summary judgment is 6 entitled to judgment as a matter of law, which will end your case. When a party you are suing 7 makes a motion for summary judgment that is properly supported by declarations (or other sworn 8 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 9 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 10 as provided in Rule 56(c), that contradict the facts shown in the defendant’s declarations and 11 documents and show that there is a genuine issue of material fact for trial. If you do not submit 12 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 13 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 14 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 15 not excuse defendants’ obligation to serve said notice again concurrently with a motion for 16 summary judgment. Woods, 684 F.3d at 939). 17 5. All communications by plaintiff with the Court must be served on defendant’s 18 counsel by mailing a true copy of the document to defendant’s counsel. The Court may disregard 19 any document which a party files but fails to send a copy of to his opponent. Until defendant’s 20 counsel has been designated, plaintiff may mail a true copy of the document directly to defendant, 21 but once defendant is represented by counsel, all documents must be mailed to counsel rather than 22 directly to defendans. 23 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 24 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 25 before the parties may conduct discovery. 26 7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 27 Court informed of any change of address and must comply with the Court’s orders in a timely 1 to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 2 || pending case every time he is moved to a new facility. 3 8. Any motion for an extension of time must be filed no later than the deadline sought 4 || to be extended and must be accompanied by a showing of good cause. 5 9. Plaintiff is cautioned that he must include the case name and case number for this 6 || case on any document he submits to the Court for consideration in this case. 7 IT IS SO ORDERED. 8 Dated: September 18, 2020 9 JON S. TIGAR 10 nited States District Judge 11 12 13 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28