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Diaz v. Kessler

United States District Court, N.D. California

August 13, 2014

ENRIQUE DIAZ, Plaintiff,
v.
R. A. KESSLER, et al., Defendants.

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

EDWARD J. DAVILA, District Judge.

Plaintiff, a state prisoner at Salinas Valley State Prison ("SVSP"), filed the instant civil rights action in pro se pursuant to 42 U.S.C. § 1983, against prison officials. Plaintiff's motion for leave to proceed in forma pauperis will be granted in a separate 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 Order of Service 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 he was "subjected to discriminatory and retaliatory measurements" by prison officials at SVSP while Plaintiff was engaged in protected conduct. (Compl. at 3.) Specifically, Plaintiff claims that because he filed a "discrimination complaint" to the prison appeals office on April 21, 2013, Defendant D. Ambriz fabricated a false Rules Violation Report ("RVR") on May 4, 2013. (Id.) Defendant R. Kessler found Plaintiff guilty of the RVR, and imposed penalties, and Defendants P. Sullivan and B. Hedrick approved the guilty finding. After Plaintiff appealed the matter, he appeared at a hearing before Defendant M. Ross, who denied him due process; Defendants J. J. Hughes and B. Hedrick approved the outcome. ( Id. at 5-A.) Plaintiff claims that subsequently, the RVR was "dismissed/invalidated." (Id.) Plaintiff continued to pursue prison complaints against Defendants' actions, and was pressured by Defendants L. M. Pennisi and P. Sullivan to withdraw them; Plaintiff filed another complaint regarding their interview. (Id.) Plaintiff claims that right after the "threats, " Defendants A. Tankersley and S. Nunez terminated his Jewish service on June 18, 2013. ( Id. at 6-A.)

Liberally construed, Plaintiff states cognizable claims of a due process violation with respect to the allegedly false RVR, First Amendment retaliation, and First Amendment right to free exercise of religion.

CONCLUSION

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 Lt. R. A. Kessler, Sgt. D. Ambriz, Lt. P. Sullivan, B. Hedrick, Lt. M. Ross, Capt. J. J. Hughes, Lt. L. M. Pennisi, Correctional Officer A. Tankersley, and Correctional Officer S. Nunez at Salinas Valley State Prison, (P.O. Box 1050, Soledad, CA 93960). 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 ...


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