United States District Court, N.D. California
DONALD D. JEFFERY, Plaintiff,
J. BENEFIELD, et al., Defendants.
ORDER OF SERVICE
NATHANAEL M. COUSINS UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, filed a civil rights
complaint, pursuant to 42 U.S.C. § 1983. The Court
granted Plaintiff's motion to proceed in forma pauperis,
see Dkt. No. 5, and dismissed his complaint with
leave to amend, see Dkt. No. 6. Plaintiff timely
filed an amended complaint, see Dkt. No. 7, which
the Court now reviews. For the reasons that follow, the Court
orders service of the amended complaint upon Defendants.
federal court must engage in a preliminary screening of any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity. 28
U.S.C. § 1915A(a). In its review the court must identify
any cognizable claims, and dismiss any claims which 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. 28 U.S.C. § 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. 1990).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements:
that a right secured by the Constitution or laws of the
United States was violated and (2) that the violation was
committed by a person acting under the color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988).
construing Plaintiff's complaint, Plaintiff has stated
cognizable claims that (1) he was retaliated against by
Defendant Benefield in violation of the First Amendment, with
the assistance of Defendants Quintero and Garcia, and that
(2) Defendant Benefield publicized Plaintiff's sex
offense in violation of the Eighth Amendment.
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 amended complaint and all
attachments thereto, a magistrate judge jurisdiction consent
form, and a copy of this order to Defendants J. Benefield, R.
Quintero, and P. Garcia, correctional officers at Salinas
Valley State Prison. The Clerk of the Court shall also mail a
courtesy copy of the amended complaint and a copy of this
order to the California Attorney General's Office.
Additionally, the Clerk shall mail a copy of this order to
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 amended
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 be shown for their failure to sign and return the
waiver form. If service is waived, Defendants will be
required to serve and file an answer within sixty (60) days
from the date on which the request for waiver was sent to
them. Defendants are asked to read the statement set forth at
the bottom 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.
later than sixty (60) days from the date the waivers are sent
from the Court, Defendants shall file a dispositive motion,
such as a motion to dismiss or a motion for summary judgment,
with respect to the cognizable claims in the amended
complaint, raising any merits challenges or affirmative
defenses they may have to those claims. At that time,
Defendants shall also submit the magistrate judge
jurisdiction consent form. 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. A motion for summary judgment also must
be accompanied by a Rand notice so that Plaintiff
will have fair, timely and adequate notice of what is
required of him in order to oppose the motion. Woods v.
Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice
requirement set out in Rand v. Rowland, 154 F.3d 952
(9th Cir. 1998), must be served concurrently with motion for
summary judgment). Defendants are advised that summary
judgment cannot be granted, nor qualified immunity found, if
material facts are in dispute. If Defendants are of the
opinion that this case cannot be resolved by summary
judgment, they shall so inform the Court prior to the date
the summary judgment motion is due.
Plaintiffs opposition to the dispositive motion shall be
filed with the Court and served on Defendants no later than
twenty-eight (28) days from the date Defendants' motion
is filed. Plaintiff is advised to read Rule 56 of the Federal
Rules of Civil Procedure and Celotex Corp. v. Catrett,
477 U.S. 317 (1986) (holding party opposing summary
judgment must come ...