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Chance v. Cate

United States District Court, Ninth Circuit

July 31, 2013

DAVID CHANCE, Plaintiff,
v.
MATTHEW L. CATE, et al., Defendants.

SECOND ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK

RICHARD SEEBORG, District Judge.

INTRODUCTION

This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state prisoner. Defendants are directed to file a dispositive motion in response to the first amended complaint (or notice regarding such motion) on or before November 1, 2013, unless an extension is granted. The Court further directs that defendants are to adhere to the new notice provisions detailed in Sections 2.a and 10 of the conclusion of this order.

DISCUSSION

A. Standard of Review

A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

A "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). Furthermore, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

B. Legal Claims

Plaintiff alleges that defendants impermissibly stopped his mail on many occasions between 2007 and 2009. In its last order, the Court dismissed the complaint with leave to amend. Plaintiff was specifically directed to list only those claims that related to events in 2007. He has filed a motion for reconsideration in which he realleges claims related to events outside of that year (Docket No. 69).

Plaintiff's motion for reconsideration is DENIED. All claims related to events after 2007 are DISMISSED without prejudice. If plaintiff wishes to seek relief for such claims, he must file one or more new civil rights actions. Accordingly, the sole claims remaining in this action are his First and Fourteenth Amendment claims against defendants for their alleged 2007 actions. Plaintiff's motion for an extension of time to file an amended complaint (Docket No. 66) is DENIED. The Court reinstates the first amended complaint as the operative complaint only insofar as it alleges claims regarding events in 2007. The Clerk shall serve a copy of the first amended complaint on only the following defendants: (1) W.V. Anthony, (2) K. Brandon, (3) K. McGuyer, (4) D.E. Milligan, (5) G. Pimentel, and (6) J.E. Pieren. Matthew Cate, Robert Horel, Francisco Jacquez, and G.D. Lewis are TERMINATED as defendants, and the claims against them DISMISSED.

CONCLUSION

For the foregoing reasons, the Court orders as follows:

1. The Clerk of the Court shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the complaint in this matter, all attachments thereto, and a copy of this order upon (1) W.V. Anthony, (2) K. Brandon, (3) K. McGuyer, (4) D.E. Milligan, (5) G. Pimentel, and (6) J.E. Pieren, all at Pelican Bay State Prison. The Clerk shall also mail courtesy copies of the complaint and this order to the California Attorney General's Office.

2. No later than ninety (90) days from the date of this order, defendants shall file a motion for summary judgment or other dispositive motion with respect to the claims ...


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