Scott v. LT Mccay ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES SCOTT, Case No. 24-cv-01335-HSG 8 Plaintiff, ORDER OF SERVICE; DENYING REQUEST FOR EXTENSION OF 9 v. STATUTORY DEADLINE 10 SERGEANT DOMINGUEZ, Re: Dkt. No. 14 at 3 11 Defendant. 12 13 Plaintiff, an inmate currently housed at Salinas Valley State Prison has filed a pro se action 14 pursuant to 42 U.S.C. § 1983. In this order, the Court screens Plaintiff’s second amended 15 complaint (Dkt. No. 14) pursuant to 28 U.S.C. § 1915A, and DENIES Plaintiff’s request that the 16 Court extend the one-year filing deadline set forth in 28 U.S.C. § 2244. 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 United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 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 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 9 U.S. 42, 48 (1988). 10 B. Second Amended Complaint 11 The second amended complaint alleges that SVSP officer Dominguez has denied Plaintiff 12 access to the courts as follows. On or about January 17, 2023, Plaintiff received two boxes of his 13 pretrial discovery materials from his attorney, Simon Wollack. The boxes contained more than 14 2,000 pages of police reports and numerous CDs and DVDs. The CDs and DVDs contained 15 recorded and videotaped witness interviews. Pursuant to prison policy, inmates may not receive 16 CDs or DVDs. Defendant Dominguez confiscated the CDs and DVDs and told Plaintiff that he 17 would mail them back to Plaintiff’s attorney. However, defendant Dominguez mailed the CDs 18 and DVDs to a James Scott in Modesto. The address for Plaintiff’s attorney, Simon Wollack, is 19 P.O. Box. 23933, Pleasant Hill, CA 94523. Plaintiff is unfamiliar with the Modesto address. Mr. 20 Wollack never received the CDs and DVDs, and these CDs and DVDs have not been located. 21 Plaintiff seeks to file a federal habeas petition challenging his state court conviction, which 22 became final on June 12, 2024. However, Plaintiff cannot prepare his federal habeas petition 23 without these CDs and DVDs. Plaintiff alleges that defendant Dominguez denied Plaintiff access 24 to the courts, in violation of the First Amendment, when defendant Dominguez deprived Plaintiff 25 of these CDs and DVDs. As relief, Plaintiff requests $1 million dollars, replacement of his 26 missing legal DVDs and CDs, and “a hold on [Plaintiff’s] case till this is resolved so the one year 27 A.E.D.P.A.’s clock will stop.” See generally Dkt. No. 14. 1 the courts. See Lewis v. Casey, 518 U.S. 343, 348, 350-55 (1996) (to state claim for violation of 2 right of access to courts, prisoner must allege that active interference by prison officials caused 3 him “actual prejudice with respect to contemplated or existing litigation, such as the inability to 4 meet a filing deadline or to present a claim”). 5 The Court DENIES Plaintiff’s request that the Court toll or extend the one-year deadline 6 set forth in the AEDPA to file a federal petition for a writ of habeas corpus. Dkt. No. 14 at 3. As 7 a general rule, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires 8 state prisoners challenging noncapital state convictions or sentences to file these challenges within 9 one year of the latest of the date on which the judgment became final after the conclusion of direct 10 review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). There is 11 no provision in AEPDA that allows courts to extend the deadlines set forth in Section 2244. See 12 generally 28 U.S.C. § 2244. 13 CONCLUSION 14 For the reasons set forth above, the Court orders as follows. 15 1. The following defendant(s) shall be served: Salinas Valley State Prison correctional 16 official sergeant J. Dominguez. 17 2. Service on the listed defendant(s) shall proceed under the California Department of 18 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners 19 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the 20 CDCR via email the following documents: the operative complaint (Dkt. No. 14), this order of 21 service, a CDCR Report of E-Service Waiver form and a summons. The Clerk also shall serve a 22 copy of this order on the Plaintiff. 23 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 24 provide the court a completed CDCR Report of E-Service Waiver advising the court which 25 defendant(s) listed in this order will be waiving service of process without the need for service by 26 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 27 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 1 a waiver of service of process for the defendant(s) who are waiving service. 2 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 3 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 4 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 5 of this order, the summons, and the operative complaint for service upon each defendant who has 6 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 7 Service Waiver. 8 3. The Court DENIES Plaintiff’s request that the Court toll or extend the one-year 9 deadline set forth in the AEDPA to file a federal petition for a writ of habeas corpus. Dkt. No. 14 10 at 3. 11 4. As detailed above, the operative complaint states a cognizable First Amendment 12 claim against defendant J. Dominguez. 13 5. In order to expedite the resolution of this case, the Court orders as follows: 14 a. No later than 91 days from the date this order is filed, Defendant(s) must 15 file and serve a motion for summary judgment or other dispositive motion. If Defendant(s) is(are) 16 of the opinion that this case cannot be resolved by summary judgment, Defendants must so inform 17 the Court prior to the date the motion is due. A motion for summary judgment also must be 18 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what 19 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 20 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 21 served concurrently with motion for summary judgment).1 22 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 23 must be filed with the Court and served upon Defendant(s) no later than 28 days from the date the 24 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 25 1 If Defendant(s) assert(s) that Plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), Defendant(s) 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 27 Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which 1 provided later in this order as he prepares his opposition to any motion for summary judgment. 2 Defendant(s) shall file a reply brief no later than 14 days after the date the opposition is filed. The 3 motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on 4 the motion. 5 6. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 6 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 7 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 8 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 9 any fact that would affect the result of your case, the party who asked for summary judgment is 10 entitled to judgment as a matter of law, which will end your case. When a party you are suing 11 makes a motion for summary judgment that is properly supported by declarations (or other sworn 12 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 13 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 14 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and 15 documents and show that there is a genuine issue of material fact for trial. If you do not submit 16 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 17 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 18 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 19 not excuse Defendants’ obligation to serve said notice again concurrently with a motion for 20 summary judgment. Woods, 684 F.3d at 939). 21 7. All communications by Plaintiff with the Court must be served on Defendants’ 22 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard 23 any document which a party files but fails to send a copy of to his opponent. Until Defendants’ 24 counsel has been designated, Plaintiff may mail a true copy of the document directly to 25 Defendants but once Defendants are represented by counsel, all documents must be mailed to 26 counsel rather than directly to Defendants. 27 8. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 1 before the parties may conduct discovery. 2 9. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 3 Court informed of any change of address and must comply with the Court’s orders in a timely 4 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 5 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 6 || pending case every time he is moved to a new facility. 7 10. Any motion for an extension of time must be filed no later than the deadline sought 8 to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 9 || he must include the case name and case number for this case on any document he submits to the 10 || Court for consideration in this case. 11 IT IS SO ORDERED. Dated: 1 1/21/2024 4 HAYWOOD S. GILLIAM, JR. United States District Judge 16 18 19 20 21 22 23 24 25 26 27 28