United States District Court, N.D. California
ORDER OF SERVICE;
DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION;
INSTRUCTIONS TO CLERK
EDWARD J. DAVILA,
Plaintiff, a state prisoner at San Quentin State Prison, filed the
instant civil rights action in pro se pursuant to 42 U.S.C. § 1983. Plaintiff's
motion for leave to proceed in forma pauperis will be granted in a separate
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, however, be liberally 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 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. Plaintiff's Claims
Plaintiff claims that Defendant T. Pasley interfered with his outgoing
legal mail during May and June 2013. (Compl. at 3.) According to the attached
papers, Defendant Pasley returned Plaintiff's mail to him with a request to
submit Non Sufficient Funds ("NSF") envelopes to cover the cost of postage.
Plaintiff claims that after he notified the mail room that he never received NSF
envelopes, he received no response. He later interviewed with mailroom
supervisor, Defendant Alex Lile, and notified her of the incident. Liberally
construed, Plaintiff states a cognizable claim under the First Amendment. See
Witherow v. Paff , 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh
v. Abbott , 490 U.S. 401, 407 (1989)).
For the reasons stated above, the Court orders as follows:
1. The Clerk of the Court shall mail a Notice of Lawsuit and Request
for Waiver of Service of Summons, two copies of the Waiver of Service of
Summons, a copy of the complaint, all attachments thereto, and a copy of this
order upon Defendants T. Pasley, Office Assistant, and Alex Lile, Mail Room
Supervisor, at San Quentin State Prison, (San Quentin, CA 94964). The Clerk
shall also mail a copy of this Order to Plaintiff.
2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil
Procedure requires them to cooperate in saving unnecessary costs of service of
the summons and the complaint. Pursuant to Rule 4, if Defendants, after being
notified of this action and asked by the Court, on behalf of Plaintiff, to waive
service of the summons, fail to do so, they will be required to bear the cost of
such service unless good cause shown for their failure to sign and return the
waiver form. If service is waived, this action will proceed as if Defendants had
been served on the date that the waiver is filed, except that pursuant to Rule
12(a)(1)(B), Defendants will not be required to serve and file an answer before
sixty (60) days from the day on which the request for waiver was sent. (This
allows a longer time to respond than would be required if formal service of
summons is necessary.) Defendants are asked to read the statement set forth at
the foot of the waiver form that more completely describes the duties of the
parties with regard to waiver of service of the summons. If service is waived
after the date provided in the Notice but before Defendants have been personally
served, the Answer shall be due sixty (60) days from the date on which the
request for waiver was sent or twenty (20) days from the date the waiver form is
filed, whichever is later.
3. 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 in the complaint found to be cognizable above.
a. Any motion for summary judgment shall be supported by adequate
factual documentation and shall conform in all respects to Rule 56 of the
Federal Rules of Civil Procedure. Defendants are advised that summary judgment
cannot be granted, nor qualified immunity found, if material facts are in
dispute. If any Defendant is of the opinion that this case cannot be resolved by ...