Harris v. Broomfield

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 MAURICE LYDELL HARRIS, Case No. 21-cv-00283-HSG

8 Plaintiff, ORDER SCREENING AMENDED

COMPLAINT; SETTING BRIEFING

9 v. SCHEDULE

10 ROY MAERSE, et al., Re: Dkt. No. 8

11 Defendants.

12

13 Plaintiff, an inmate at San Quentin State Prison (“SQSP”) has filed a pro se action

14 pursuant to 42 U.S.C. § 1983. His amended complaint (Dkt. No. 8) is now before the Court for

15 review under 28 U.S.C. § 1915A.

16 DISCUSSION

17 A. Standard of Review

18 A federal court must conduct a preliminary screening in any case in which a prisoner seeks

19 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

20 §1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims

21 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek

22 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),

23 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d

24 989, 993 (9th Cir. 2020).

25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

26 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not

27 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the

1 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned,

2 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).

3 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a

4 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id.

5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a

6 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged

7 violation was committed by a person acting under the color of state law. See West v. Atkins, 487

8 U.S. 42, 48 (1988).

9 B. Initial Complaint

10 The Court screened the initial complaint and found that the following allegations stated

11 cognizable claims for violation of the First Amendment’s free exercise clause and Establishment

12 clause, the Eighth Amendment, the Equal Protection Clause, and the Religious Land Use

13 Institutionalized Persons Act (“RLUIPA”): defendants Muhammad and Jackson failed to provide

14 Plaintiff with a diet consistent with his religious beliefs and adequate to meet his nutritional and

15 health needs when they (1) provided vegetarian meals instead of the approved meat alternatives;

16 and (2) conditioned his participation in the Religious Diet Program on refraining from consuming

17 ramen soups which are allowed under his religion and necessary to maintain his health given the

18 changes in the Religious Diet Program. The Court dismissed with prejudice the claims regarding

19 the grievance process; dismissed with prejudice defendants Carlton, Walker, Ballein, the Office of

20 Appeals, Allen, Davis and Broomfield because their only involvement in the alleged constitutional

21 violations was their participation in the grievance process; and dismissed defendants Maerse and

22 Gary with leave to amend because the allegations regarding these defendants’ participation in the

23 grievance process failed to state cognizable constitutional claims. See generally Dkt. No. 6.

24 C. Amended Complaint

25 Plaintiff has named as defendants the following former or current SQSP correctional

26 officials: former correctional food manager Roy Maerse, current correctional food manager

27 Martha Garcia; assistant correctional food manager A. Gary; correctional lieutenant and

1 Christian chaplain Jackson. Dkt. No. 8 at 3.

2 The amended complaint makes the following allegations.

3 Plaintiff practices Soka Gakkai International (SGI) Nichiren Buddhism. According to

4 Plaintiff’s religious beliefs, his body is a temple that should not be polluted by consuming meat

5 that contains genetically modified ingredients (“GMO”). In 2007, Plaintiff requested a GMO-free

6 Buddhist diet. SQSP only offers three kinds of religious diets: vegetarian, Kosher, and Halal

7 (Islamic). The Halal/Islamic Diet, also referred to as the Religious Meat Alternate Program

8 (“RMAP”), does not include GMO meat. The SQSP Jewish chaplain at the time, Carole Hyman,

9 authorized Plaintiff to participate in the RMAP because no Buddhist diet was available. Plaintiff’s

10 participation in the RMAP did not require him to follow the laws of any other religion. Pursuant

11 to this decision, Hyman issued Plaintiff a Religious Diet Card.1

12 Plaintiff has been diagnosed with prediabetes and prehypertension. In 2011, an SQSP

13 physician provided him with instructions on how to choose healthy options from the canteen

14 including soups. In 2020, there was only one low sodium soup choice at the canteen, a chicken

15 soup.

16 On August 7, 2017, Plaintiff complained to defendant Maerse that the frequent mystery

17 meat substitutions for the approved religious meat alternative negatively affected his focus and

18 strength, thereby affecting his religious practice. In response, defendant Maerse sent Plaintiff a

19 departmental memo which described the religious meat alternative and when that diet was to be

20 served to RMAP participants.

21 On March 1, 2018, Plaintiff visited the SQSP health clinic for light-headedness, headaches

22 and lethargy. At this appointment, a nurse noticed an irregular heartbeat. That same day, Plaintiff

23 filed a grievance alleging that SQSP was serving him vegetarian dinners instead of the approved

24 religious meat alternatives, in violation of both state regulations and the departmental memo

25 governing RMAP. Plaintiff alleged that the violations were negatively affecting his health and

26 causing him to feel light-headed. Plaintiff has a history of fainting from lack of nutrients.

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1 On March 2, 2018, Plaintiff was seen again by SQSP medical staff. The nurse again

2 noticed an irregular heartbeat. SQSP doctor Grant advised Plaintiff to consume at least 2500

3 calories and 56 grams of protein daily.

4 On March 13, 2018, in connection with the grievance filed on March 1, 2018, defendant

5 Maerse stated that there had been a reduction in the amount of meat served to RMAP participants,

6 in accordance with the August 21, 2017 RMAP memo, and insisted that the food service complied

7 with state regulations.

8 On April 18, 2018, in connection with the grievance filed on March 1, 2018, defendant

9 Gary stated that vegetarian meals are allowable as part of the RMAP.

10 On April 19, 2018, meat was placed back on the RMAP menu and Plaintiff’s health

11 improved.

12 On June 27, 2018, Plaintiff again had to visit the health clinic for dizziness and lethargy,

13 due to “breaches of his RMAP diet.”

14 On May 16, 2019, defendant Muhammad (Fasish) issued Plaintiff a religious diet violation

15 for buying ramen soups with his own funds.

16 On or about July 1, 2019, Plaintiff filed another grievance alleging that prison officials had

17 violated the RMAP by failing to provide him with religious meat alternatives and instead serving

18 vegetarian meals. Plaintiff listed at least 19 instances of being served food items that were not part

19 of the RMAP. On July 17, 2019, Plaintiff was interviewed by defendant Gary with respect to this

20 grievance. When Plaintiff asked defendant Gary whether empanadas served as part of the RMAP

21 contained GMO ingredients, she instructed him that he would need to file a lawsuit to obtain this

22 information and further stated, without providing any authority, that vegetarian meals were

23 interchangeable with RMAP dinners, especially when Halal meats were unavailable. Defendant

24 Gary denied the grievance at the first level of review. On August 22, 2019, defendant Garcia

25 denied Plaintiff’s grievance at the second level, approving defendant Gary’s first level denial.

26 In June 2020, SQSP suffered a COVID outbreak, resulting in SQSP prisoners being served

27 sack lunches and cold dinners, all of which were half the usual portion. Plaintiff contracted

1 his own food from the canteen. Plaintiff purchased soups with these funds.

2 On October 10, 2020, defendant Jackson informed that Plaintiff that he would receive

3 another RMAP violation for buying soups during the pandemic (June – August 2020). Defendant

4 Jackson stated that if Plaintiff wished to avoid the violation being placed in his central file, he

5 could voluntarily withdraw from the RMAP. Defendant Jackson informed Plaintiff that higher-

6 ups in Sacramento had ordered her to issue the violation, and denied that the violation was in

7 retaliation for a lawsuit settled by Plaintiff on October 1, 2020.

8 SQSP prison officials continue to violate the RMAP by substituting vegetarian meals in

9 place of religious meat alternatives. Plaintiff believes that SQSP prison officials are attempting to

10 purge prisoners from the RMAP by constantly serving foods that are inconsistent with the RMAP

11 and by threatening prisoners with religious diet violations for buying soups.

12 D. Legal Causes of Action

13 1. Free Exercise Clause

14 Plaintiff argues that defendants Jackson and Muhammad (Fasish) are violating his right to

15 free exercise of religion because they have prohibited him from consuming ramen soups as part of

16 his religious diet and because they have decided that Plaintiff’s religious beliefs are irrelevant to

17 whether he violated his religious diet; and that defendants Maerse, Garcia and Gary are violating

18 his right to free exercise of religion by substituting vegetarian meals for the religious meat

19 alternatives. The Free Exercise Clause prohibits prison officials from burdening an inmate’s

20 practice of his or her religion without any justification reasonably related to legitimate penological

21 interests. See Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008). Inmates “have the right to

22 be provided with food sufficient to sustain them in good health that satisfies the dietary laws of

23 their religion.” McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987).

24 Liberally construed, the amended complaint states a cognizable free exercise claim against

25 defendants Jackson and Muhammad (Fasish). However, defendants Jackson and Muhammad

26 (Fasish)’s alleged refusal to consider Plaintiff’s religious beliefs in determining whether he

27 violated the conditions for receiving a RMAP diet and refusal to allow Plaintiff to consume ramen

1 Clause does not require that Plaintiff be allowed to participate in the RMAP diet under conditions

2 consistent with his religious practices. Rather, the cognizable claim set forth in the amended

3 complaint is whether defendants Jackson and Muhammad (Fasish) violated the Free Exercise

4 Clause when they conditioned Plaintiff’s ability to receive a GMO-free diet, which he claims is a

5 tenet of his religion, on giving up the consumption of ramen soups he allegedly needs to eat to

6 maintain his health given the limitations of the GMO-free diet available to him through the

7 RMAP.

8 Plaintiff’s allegations fail to state a cognizable free exercise claim against defendants

9 Maerse, Garcia and Gary. According to the amended complaint, defendants Maerse, Garcia and

10 Gary’s involvement in the alleged constitutional violation was that, in the course of responding to

11 Plaintiff’s grievances, defendants Maerse, Garcia and Gary informed Plaintiff that vegetarian

12 meals are an allowable RMAP meal option, which Plaintiff claims is an incorrect statement.

13 Plaintiff claims that state and prison regulations and policies do not allow for vegetarian meals to

14 be served as part of the RMAP. As explained in the Court’s May 25, 2021 screening order, a

15 prison official’s denial of an inmate’s grievance generally does not constitute significant

16 participation in an alleged constitutional violation sufficient to give rise to personal liability under

17 Section 1983. See, e.g., Wilson v. Woodford, No. 1:05–cv–00560–OWW–SMS, 2009 WL

18 839921, at *6 (E.D. Cal. Mar. 30, 2009) (ruling against prisoner on administrative complaint does

19 not cause or contribute to constitutional violation); see also Ramirez v. Galaza, 334 F.3d 850, 860

20 (9th Cir. 2003) (holding that prisoner has no constitutional right to effective grievance or appeal

21 procedure); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of

22 entitlement to a grievance procedure.”). Defendants Maerse, Garcia and Gary’s participation in

23 the grievance process, even if they made inaccurate statements in responding to the grievances,

24 cannot constitute a violation of the Free Exercise Clause.2

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2 Moreover, the allegation that Plaintiff has been provided with vegetarian meals does not, by

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itself, state a violation of the Free Exercise clause. There is no allegation that his religion requires

him to eat meat daily. The allegation that the provision of vegetarian meals as part of the RMAP

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violated state regulations or CDCR policy also does not state a violation of the Free Exercise

1 However, the factual allegations in the amended complaint state a possible free exercise

2 claim for failing to provide Plaintiff with a nutritionally adequate diet consistent with his religious

3 beliefs, specifically a GMO-free diet that provides sufficient nutrition and calories. This claim

4 cannot be brought against defendants Maerse, Garcia and Gary because their only alleged

5 interaction with Plaintiff was in responding to grievances. Nor could such a claim be brought

6 against defendants Jackson or Muhammad (Fasish) because there is no allegation that they

7 determine what meal options are available to Plaintiff. This free exercise claim is DISMISSED

8 with leave to amend for Plaintiff to identify the appropriate defendant responsible for the failure to

9 provide him with a nutritionally adequate diet consistent with his religious beliefs.

10 2. Establishment Clause Claim

11 The Supreme Court has interpreted the Establishment Clause to mean that the government

12 may not promote or affiliate itself with any religious doctrine or organization and may not

13 discriminate among persons on the basis of their religious beliefs and practices. See County of

14 Allegheny v. ACLU, 492 U.S. 573, 590 (1989). For the purpose of an Establishment Clause

15 violation, a state policy need not be formal, written or approved by an official body to qualify as

16 state sponsorship of religion; however, the actions complained of must be sufficiently imbued with

17 the state’s authority to constitute state endorsement of religion. See Canell v. Lightner, 143 F.3d

18 1210, 1214-15 (9th Cir. 1998) (correctional officer’s evangelizing activities did not constitute state

19 endorsement of religion because activities were not sanctioned in any way by policy of

20 correctional facility or staff and were short-term and sporadic). A state regulation or practice

21 “does not violate the Establishment Clause if (1) the enactment has a secular purpose; (2) its

22 principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an

23 excessive entanglement with religion.” Collins v. Chandler Unified Sch. Dist., 644 F.2d 759, 762

24 (9th Cir. 1981).

25 Plaintiff argues that by determining that soups cannot be a part of Plaintiff’s religious diet,

26 defendants Muhammad (Fasish) and Jackson have become excessively entangled in his religious

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1 practice and have endorsed Islam over Buddhism by using Islamic law to determine what violates

2 a state statute, in violation of the Establishment Clause. Plaintiff has failed to state a cognizable

3 Establishment Clause claim. Plaintiff is alleging that by requiring Buddhists to refrain from

4 consuming ramen soups in order to obtain a GMO-free diet, defendants Jackson and Mohammad

5 have favored Islam over Buddhism. However, to state a cognizable Establishment Clause claim,

6 the challenged policy must be sufficiently imbued with the state’s authority to constitute state

7 endorsement of religion. Requiring Buddhist inmates to choose between the available GMO-free

8 diet and the ability to consume ramen soups does not endorse Islam, although it may burden an

9 inmate’s free exercise of religion. Plaintiff’s Establishment Clause claim is DISMISSED with

10 prejudice because amendment would be futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

11 2000) (district court should grant leave to amend unless pleading could not possibly be cured by

12 the allegation of other facts).

13 3. Eighth Amendment Claim

14 Plaintiff alleges that Defendants have violated the Eighth Amendment because they have

15 placed his health at risk by replacing the religious meat alternatives with less nutritious vegetarian

16 dinners and by preventing him from supplementing his diet with ramen soups. Deliberate

17 indifference to a prisoner’s serious medical needs violates the Eighth Amendment’s proscription

18 against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin

19 v.Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds by WMX

20 Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A “serious” medical

21 need exists if the failure to treat a prisoner’s condition could result in further significant injury or

22 the “unnecessary and wanton infliction of pain.” McGuckin, 974 F.2d at 1059 (citing Estelle, 429

23 U.S. at 104). The existence of an injury that a reasonable doctor or patient would find important

24 and worthy of comment or treatment; the presence of a medical condition that significantly affects

25 an individual’s daily activities; or the existence of chronic and substantial pain are examples of

26 indications that a prisoner has a serious need for medical treatment. Id. at 1059-60 (citing Wood v.

27 Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)). The amended complaint’s allegation that

1 foods adequate to meet his nutritional and health needs states a cognizable Eighth Amendment

2 claim for deliberate indifference to Plaintiff’s serious medical needs. The amended complaint’s

3 allegations that defendants Muhammad and Jackson have replaced the religious meat alternatives

4 with less nutritious vegetarian dinners does not state a cognizable Eighth Amendment claim

5 because, as discussed above, there is no allegation that Muhammad and Jackson decide the meals

6 that make up the RAMP diet. The Eighth Amendment claim arising out of the replacement of

7 religious meat alternatives with less nutritious vegetarian dinners is DISMISSED with leave to

8 amend for Plaintiff to identify the appropriate defendant responsible for ordering the substitution

9 of the religious meat alternatives.

10 4. Equal Protection Claim

11 Plaintiff alleges that defendants Muhammad (Fasish) and Jackson have violated the Equal

12 Protection Clause “by discriminating against Plaintiff because of his religious beliefs.” ECF No. 8

13 at 16. The Court will liberally construe the amended complaint as alleging that defendants

14 Muhammad (Fasish) and Jackson have violated the Equal Protection Clause by allowing Muslim

15 and Jewish inmates to receive meals that comply with their religious beliefs without placing

16 additional requirements upon them, but have conditioned Plaintiff’s ability to receive a GMO-free

17 diet, as required by his religion, by requiring him to adhere to Islamic dietary rules. Liberally

18 construed, this states a cognizable equal protection claim. See City of Cleburne v. Cleburne Living

19 Center, 473 U.S. 432, 439 (1985) (Equal Protection Clause requires that all persons similarly

20 situated should be treated alike).

21 5. Religious Land Use and Institutionalized Persons Act (“RLUIPA”) Claim

22 Plaintiff argues that defendants Muhammad (Fasish) and Jackson have violated RLUIPA

23 by dictating his religious practice, and that all defendants have violated RLUIPA by violating their

24 religious diet accommodation obligations. ECF No. 8 at 17. RLUIPA prohibits government from

25 imposing “a substantial burden on the religious exercise of a person residing in [prison], even if

26 the burden results from a rule of general applicability, unless the government demonstrates that

27 imposition of the burden on that person (1) is in furtherance of a compelling governmental

1 interest.”). See 42 U.S.C. § 2000cc-1(a).

2 Liberally construed, Plaintiff’s allegations state a cognizable RLUIPA claim against

3 defendants Muhammad (Fasish) and Jackson. However, the cognizable RLUIPA claim is not that

4 defendants Jackson and Muhammad (Fasish) are dictating Plaintiff’s religious practice by refusing

5 to allow him to consume ramen soups or that they have allegedly failed to abide by state and

6 prison regulations and policies. The cognizable claim is that defendants Muhammad (Fasish) and

7 Jackson have conditioned Plaintiff’s ability to receive a GMO-free diet, as required by his religion,

8 on forgoing ramen soups which he consumes for his health.

9 The amended complaint does not state a cognizable RLUIPA claim against defendants

10 Garcia, Gary and Maerse. The only action taken by these defendants was responding to Plaintiff’s

11 grievances with the allegedly incorrect statement that the vegetarian meals served, in frequency

12 and type, were allowable as part of the RMAP. Defendants Garcia, Gary and Maerse’s response

13 to the grievances, even if inaccurate, did not burden Plaintiff’s exercise of his religion. The

14 RLUIPA claim against defendants Garcia, Gary and Maerse is DISMISSED with prejudice

15 because amendment would be futile.

16 6. California Regulations and Common Law Claims

17 Plaintiff argues that Defendants violated their obligations under title 15 of the California

18 Code of Regulations when they failed to provide him with “appropriate religious meals,” and that

19 defendants Muhammad (Fasish) and Jackson violated California contract law by implementing an

20 ex post facto provision into the religious diet agreement that Plaintiff entered into with Chaplain

21 Hyman. ECF No. 8 at 17. These allegations fail to state cognizable legal claims. Defendants’

22 alleged violations of state law do not state a cognizable claim because there is no liability under

23 Section 1983 for violating state law or prison policy. See Owe v. Gwinn, 264 F.3d 817, 824 (9th

24 Cir. 2001) (“To the extent that the violation of a state law amounts to the deprivation of a state-

25 created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983

26 offers no redress.”) (internal quotation marks and citation omitted); Cousins v. Lockyer, 568 F.3d

27 1063, 1070 (9th Cir. 2009) (no liability under § 1983 for violating prison policy). There is no

1 contract with Plaintiff when she issued him a religious diet card that allowed him to participate in

2 RMAP. Assuming arguendo that Chaplain Hyman consented to Plaintiff’s participation in the

3 RMAP, she did not receive consideration. See Cal. Civ. § 1550 (essential elements of contract are

4 parties capable of consenting, their consent, a lawful object, and sufficient cause or consideration).

5 Moreover, any contract between Chaplain Hyman and Plaintiff would not be binding upon SQSP

6 or SQSP prison officials. Defendants Muhammad (Fasish) and Jackson’s actions therefore could

7 not breach any such contract. The amended complaint’s state law claims are DISMISSED with

8 prejudice because amendment would be futile.

9 CONCLUSION

10 For the reasons set forth above, the Court orders as follows.

11 1. The amended complaint states cognizable claims against defendants Muhammad

12 (K. Fasish) and Jackson for violation of the First Amendment’s free exercise clause, the Eighth

13 Amendment, the Equal Protection clause, and RLUIPA.

14 2. The Court DISMISSES with prejudice the Establishment Clause claims and the

15 state law claims. The Court also DISMISSES with prejudice defendants Roy Maerse, Martha

16 Garcia, and A. Gary.

17 3. The Court DISMISSES with leave to amend the claim that the failure to provide

18 Plaintiff with a nutritionally adequate diet consistent with his religious beliefs violates the Free

19 Exercise Clause of the First Amendment, and the claim that replacing the religious meat

20 alternative meals with vegetarian meals constituted deliberate indifference to his serious medical

21 needs, in violation of the Eighth Amendment. If Plaintiff wishes to file a second amended

22 complaint that names the proper defendant(s) for these claims, he shall do so within twenty-eight

23 (28)days of the date of this order. The second amended complaint must include the caption and

24 civil case number used in this order, Case No. C 21-002831566 HSG (PR) and the words

25 “SECOND AMENDED COMPLAINT” on the first page. If using the court form complaint,

26 Plaintiff must answer all the questions on the form in order for the action to proceed. An amended

27 complaint completely replaces the previous complaints. See Lacey v. Maricopa Cnty., 693 F.3d

1 the claims he wishes to present, including the claims found cognizable in this order, and all of the

2 defendants he wishes to sue, including the ones already served, and may not incorporate material

3 from the prior complaints by reference. Plaintiff may not change the nature of this suit by alleging

4 new, unrelated claims in the second amended complaint. Failure to file a second amended

5 complaint in accordance with this order in the time provided will result in Dkt. No. 8 remaining

6 the operative complaint, and this action proceeding against defendants Muhammad and Jackson on

7 the claims found cognizable herein. The Clerk shall include two copies of the court’s complaint

8 form with a copy of this order to Plaintiff.

9 4. Defendants have not yet answered the complaint. Within twenty-one (21) days of

10 the date of this order, Defendants must file their answer to the operative complaint (Dkt. No. 8).

11 5. In order to expedite the resolution of this case, the Court orders as follows:

12 a. No later than 91 days from the date this order is filed, Defendants must file

13 and serve a motion for summary judgment or other dispositive motion. If Defendants are of the

14 opinion that this case cannot be resolved by summary judgment, Defendants must so inform the

15 Court prior to the date the motion is due. A motion for summary judgment also must be

16 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what

17 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir.

18 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be

19 served concurrently with motion for summary judgment).3

20 b. Plaintiff’s opposition to the summary judgment or other dispositive motion

21 must be filed with the Court and served upon Defendants no later than 28 days from the date the

22 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment

23 provided later in this order as he prepares his opposition to any motion for summary judgment.

24 c. Defendants shall file a reply brief no later than 14 days after the date the

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3 If Defendants assert that Plaintiff failed to exhaust his available administrative remedies as

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required by 42 U.S.C. § 1997e(a), Defendants must raise such argument in a motion for summary

judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014)

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(en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that

1 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No

2 hearing will be held on the motion.

3 6. Plaintiff is advised that a motion for summary judgment under Rule 56 of the

4 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must

5 do in order to oppose a motion for summary judgment. Generally, summary judgment must be

6 granted when there is no genuine issue of material fact – that is, if there is no real dispute about

7 any fact that would affect the result of your case, the party who asked for summary judgment is

8 entitled to judgment as a matter of law, which will end your case. When a party you are suing

9 makes a motion for summary judgment that is properly supported by declarations (or other sworn

10 testimony), you cannot simply rely on what your complaint says. Instead, you must set out

11 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents,

12 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and

13 documents and show that there is a genuine issue of material fact for trial. If you do not submit

14 your own evidence in opposition, summary judgment, if appropriate, may be entered against you.

15 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v.

16 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does

17 not excuse Defendants’ obligation to serve said notice again concurrently with a motion for

18 summary judgment. Woods, 684 F.3d at 939).

19 7. All communications by Plaintiff with the Court must be served on Defendants’

20 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard

21 any document which a party files but fails to send a copy of to his opponent. Until Defendants’

22 counsel has been designated, Plaintiff may mail a true copy of the document directly to

23 Defendants, but once Defendants are represented by counsel, all documents must be mailed to

24 counsel rather than directly to Defendants.

25 8. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

26 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required

27 before the parties may conduct discovery.

1 Court informed of any change of address and must comply with the Court’s orders in a timely

2 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

3 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every

4 || pending case every time he is moved to a new facility.

5 10. Any motion for an extension of time must be filed no later than the deadline sought

6 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that

7 he must include the case name and case number for this case on any document he submits to the

8 || Court for consideration in this case.

9 IT IS SO ORDERED.

10 || Dated: 4/7/2022

11 Abpured 5 Mi).

HAYWOOD S. GILLIAM, JR.

12 United States District Judge

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