United States District Court, N.D. California
ORDER GRANTING MOTION FOR CLARIFICATION; OF SERVICE
ON DEFENDANT J. IBARRA; DIRECTING DEFENDANT TO FILE
DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION;
INSTRUCTIONS TO CLERK (DOCKET NO. 5)
LABSON FREEMAN United States District Judge
a state prisoner at the Correctional Training Facility
(“CTF”) in Soledad, filed the instant pro
se civil rights action pursuant to 42 U.S.C. § 1983
against CTF personnel. After an initial screening, the Court
found the complaint stated cognizable claims, and ordered the
matter served on Defendants. (Docket No. 3.)
has filed an application for clarification regarding
Defendant J. Ibarra, whose name was not listed as a defendant
in the Order of Service. (Docket No. 5.) It appears that
Defendant Ibarra's name was inadvertently omitted.
(Docket No. 3at 3.) Accordingly, the Court orders the Clerk
of the Court to serve this matter on Defendant J. Ibarra.
Standard of Review
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).
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).
claims Defendants I. Perez conducted a retaliatory cell
search on September 24, 2018, for Plaintiff threatening to
report him for violating prison policy by watching television
for personal use. (Docket No. 1 at 10-11.) Plaintiff claims
numerous legal documents were stolen. (Id.)
Plaintiff claims that on November 15, 2018, Defendant J.
Mendoza had him moved to a cell with broken windows (14 of
the 20 windows are missing) in retaliation for Plaintiff
filing a grievance against him for mishandling inmates'
mail. (Id. at 12-13.) Plaintiff claims that
Defendant Mendoza stated to him: “you complain to[o]
much about the program and that he (J. Mendoza) knew about
Plaintiff's CDCR-602 filed against his partner I. Perez
about watching television.” (Id. at 12.)
Plaintiff claims Defendants Perez and Mendoza's actions
had a chilling effect on his First Amendment rights.
(Id. at 11, 13.) Plaintiff claims that he made
several requests to have the windows fixed to Defendants R.
Glaze, M. Zavala, B. Aguirre, and J. Ibarra over the course
of the next several months as he suffered cold and wet
weather conditions, but they all refused to act.
(Id. at 31-18.) Plaintiff claims Defendant W.
Sinkovich, the appeals examiner, “received and was
given notice of Plaintiff's unconstitutional housing, but
he refused to have staff… personally inspect
Plaintiff's cell to ascertain the validity of the
allegation.” (Id. at 19.) Plaintiff claims
that all similarly situated prisoners were afforded a
physical inspection of their cells by reviewing staff when
allegations of missing windows were complaint of, and
therefore, Defendant Sinkovich's discriminatory treatment
violated the Equal Protection Clause. (Id.)
claims that Defendants' actions amounted to retaliation
under the First Amendment for their adverse actions against
him for exercising his protected rights, cruel and unusual
punishment under the Eighth Amendment for subjecting him to
inhumane conditions, and discriminatory treatment under the
Equal Protection Clause. (Id. at 20-22.) Liberally
construed, Plaintiff's allegations are sufficient to
state such cognizable claims. See Rhodes v.
Robinson, 408 F.3d 559 (9th Cir. 2005) (First Amendment
retaliation claim); Farmer v. Brennan, 511 U.S. 825
(1994) (Eighth Amendment claim for inhumane conditions);
Maynard v. City of San Jose, 37 F.3d 1396 (9th Cir.
1994) (Equal Protection claim).
reasons state above, the Court orders as follows:
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 Defendant J.
Ibarra at the Correctional Training Facility
(P.O. Box 686, Soledad, CA 93960-0686). The Clerk
shall also mail a copy of this Order to Plaintiff.
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 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 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 ...