Herrera v. Benavides

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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

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JOSHUA S. HERRERA,

11 Case No. 22-cv-07600 BLF (PR)

Plaintiff,

12 ORDER OF PARTIAL DISMISSAL

v. AND OF SERVICE; DIRECTING

13 DEFENDANTS TO FILE

DISPOSITIVE MOTION OR

14 S. BENAVIDES, et al., NOTICE REGARDING SUCH

MOTION; INSTRUCTIONS TO

15 Defendants. CLERK

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18 Plaintiff, a state inmate proceeding pro se, filed a civil rights complaint pursuant to

19 42 U.S.C. § 1983, against officers at Salinas Valley State Prison (“SVSP”). Dkt. No. 1.

20 The Court dismissed the complaint with leave to amend to attempt to correct various

21 deficiencies. Dkt. No. 5. Plaintiff filed a first amended complaint. Dkt. No. 12.1

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23 DISCUSSION

24 A. Standard of Review

25 A federal court must conduct a preliminary screening in any case in which a

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1 The Court struck a prior “first amended complaint,” Dkt. No. 9, because it was

1 prisoner seeks redress from a governmental entity or officer or employee of a

2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

4 upon which relief may be granted or seek monetary relief from a defendant who is immune

5 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally

6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

8 elements: (1) that a right secured by the Constitution or laws of the United States was

9 violated, and (2) that the alleged violation was committed by a person acting under the

10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

11 B. Plaintiff’s Claims

12 Plaintiff names the following as Defendants in this action: S. Benavides (Mailroom

13 Supervisor), Lt. John Doe, T. Allen (Warden), John Doe Appeals Coordinator, John Doe

14 (Mailroom), and Jane Doe (Mailroom). Dkt. No. 12 at 2. Plaintiff sets forth four causes of

15 action described below. Plaintiff seeks declaratory relief and damages. Id. at 3, 10-11.

16 Under his first cause of action, Plaintiff claims that on or around May 20, 2021, he

17 sent two envelopes marked as “legal/confidential mail” with trust withdrawals securely

18 attached for postage as per protocol; “this was and can be verified by staff.” Id. at 2. On

19 May 25, 2021, the two envelopes were returned to Plaintiff marked “Returned to Sender.”

20 Id. at 3. Plaintiff claims that the trust withdrawals were ripped off by “John/Jane Doe”

21 under Supervisor S. Benavides in the mailroom, who falsely claimed that Plaintiff did not

22 pay the postage. Id. Plaintiff claims their actions violated his First Amendment rights to

23 access the courts and freedom of speech because the mail was a petition to address “Prop.

24 57 Eligibility and Related Issues” which Defendants intentionally deleted. Id. Plaintiff

25 claims that the envelopes were made unusable by Defendants, who did not replace them

26 until two months later. Id. Plaintiff asserts that there was no legitimate reason nor

1 his litigation. Id. He asserts that interfering with a prisoner’s legal mail can violate the

2 First Amendment right of speech and the right of access to the courts under the Fourteenth

3 Amendment. Id.

4 Under the second cause of action, Plaintiff claims Defendants John/Jane Doe and S.

5 Benavides violated his right to freedom of speech and to access the courts when they

6 falsely claimed that Plaintiff did not pay postage. Dkt. No. 12 at 5. Plaintiff claims they

7 acted in retaliation for his filing 602 appeals against the mailroom. Id. He contends that

8 he has a right to file appeals and to be free from retaliation for exercising that right. Id.

9 He asserts that Defendants were fully aware of several appeals filed against them by

10 Plaintiff because they were interviewed regarding them and had to respond. Id. Plaintiff

11 claims that there was no other logical or legitimate reason for their “ripp[ing] off…

12 Plaintiff’s outgoing legal mail” and violating policy. Id.

13 Under the third cause of action, Plaintiff claims that Defendants John/Jane Doe and

14 S. Benavides violated his First Amendment rights by opening his legal/confidential mail

15 outside of his presence, reading it, and then sending it through regular mail on December

16 21, 2021. Id. at 6. Plaintiff claims that the mail at issue was from the courts which is

17 considered legal mail under CDCR policy and regulations. Id. Plaintiff asserts Defendants

18 violated policy by intentionally opening his mail, and that they acted in retaliation “in

19 order to dissuade and discourage” Plaintiff from filing appeals. Id. at 7.

20 Under the fourth cause of action, Plaintiff claims that Defendants violated his right

21 to file an appeal. Dkt. No. 12 at 8. Plaintiff asserts Defendant Lt. John Doe intentionally

22 and willfully covered up the misconduct, falsified his report, and was deliberately

23 deceptive. Id. Specifically, Plaintiff claims that on or around December 30, 2021, he filed

24 an appeal addressing the misconduct of the mailroom for violating policy and regulations.

25 Id. Plaintiff claims that on February 25, 2022, he was called to the program office for an

26 interview with the mailroom Defendant Lt. John Doe regarding the appeal. Id. Then on

1 Plaintiff signed and dated for the legal mail in question. Id. Plaintiff asserts that this fraud

2 and perjury was committed in order to retaliate against Plaintiff for filing the appeal

3 addressing the misconduct. Id. Plaintiff claims that the appeal was then mishandled, and

4 that the Appeals Coordinator used his position “to retaliate against Plaintiff for exercising

5 his right to file 602 appeals.” Id. at 9.

6 1. First Cause of Action

7 Plaintiff claims that his First Amendment rights of access to the courts and freedom

8 of speech were violated by the return of his mail for lack of postage, which he alleges was

9 false. See supra at 2. Plaintiff alleged the same claim in the original complaint, which the

10 Court found to be deficient. Dkt. No. 5 at 4.

11 a. Freedom of Speech

12 A prisoner retains those First Amendment rights that are “not inconsistent with his

13 status as a prisoner or with the legitimate penological objectives of the corrections

14 system.” Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (quoting Jones

15 v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129 (1977)) (internal

16 quotation marks omitted). Accordingly, a prison regulation that impinges on a prisoner's

17 First Amendment right to free speech is valid only “if it is reasonably related to legitimate

18 penological interests.” Shaw v. Murphy, 532 U. S. 223, 229 (2001) (citing Turner v.

19 Safley, 482 U.S. 78, 89 (1987)); see, e.g., Hargis v. Foster, 312 F.3d 404, 410 (9th Cir.

20 2002) (rule subjecting prisoners to discipline for coercing guard into not enforcing prison

21 rules was, on its face, reasonably related to legitimate penological interests).

22 In the case of outgoing correspondence from prisoners to non-prisoners, however,

23 an exception to the Turner standard applies. Because outgoing correspondence from

24 prisoners does not, by its very nature, pose a serious threat to internal prison order and

25 security, there must be a closer fit between any regulation or practice affecting such

26 correspondence and the purpose it purports to serve. See id. at 411-12. Censorship in such

1 of the substantial governmental interests of security, order and rehabilitation, and (2) the

2 limitation on First Amendment freedoms is no greater than necessary to further the

3 particular government interest involved. See Procunier v. Martinez, 416 U.S. 396, 413

4 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989)

5 As with the original complaint, the alleged conduct by Defendants, i.e., returning

6 Plaintiff’s legal mail, even if true, does not rise to a First Amendment violation because

7 there is no indication that it was done for the purpose of censorship rather than the content-

8 neutral reason of lack of postage. Plaintiff asserts that their actions were retaliatory, not

9 that it was censorship. Nor does Plaintiff allege that he was prevented from re-sending the

10 legal mail once the postage matter was resolved. Lastly, to the extent that the incident

11 resulted in a delay, the temporary delay or isolated incident of delay does not violate a

12 prisoner’s First Amendment rights. See Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999)

13 (policy of diverting publications through property room reasonably related to prison's

14 interest in inspecting mail for contraband); accord Rowe v. Shake, 196 F.3d 778, 782 (7th

15 Cir. 1999) (content-neutral short-term and sporadic delays in prisoner's receipt of mail did

16 not violate his 1st Amendment rights); Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir.

17 1987) (allegations of isolated delay or some other relatively short-term, non-content-based

18 disruption in delivery of inmate mail not enough to state 1st Amendment claim); Bach v.

19 Illinois, 504 F.2d 1100, 1102 (7th Cir.) (isolated incident of mail mishandling insufficient

20 to state claim under 1st Amendment), cert. denied, 418 U.S. 910 (1974).

21 Plaintiff was already afforded one opportunity to amend this claim, and the Court

22 finds no good cause to grant him another opportunity where the amended complaint did

23 not correct the deficiency from the original. Wagh v. Metris Direct, Inc., 363 F.3d 821,

24 830 (9th Cir. 2003) (district court’s discretion to deny leave to amend particularly broad

25 where plaintiff has previously filed an amended complaint); Ferdik v. Bonzelet, 963 F.2d

26 1258, 1261 (9th Cir. 1992). Accordingly, this claim must be dismissed for failure to state a

1 b. Access to the Courts

2 Prisoners have a constitutional right of access to the courts. See Lewis v. Casey,

3 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a

4 claim for any violation of the right of access to the courts, the prisoner must prove that

5 there was an inadequacy in the prison’s legal access program that caused him an actual

6 injury. See Lewis, 518 U.S. at 349-51. Once a prisoner identifies the inadequacy in the

7 program (e.g., law library or legal assistant), he must demonstrate that the alleged

8 shortcomings in the program caused him an actual injury by hindering his efforts to pursue

9 a non-frivolous claim concerning his conviction or conditions of confinement. Lewis, 518

10 U.S. at 351, 354-55. Examples of impermissible hindrances include: a prisoner whose

11 complaint was dismissed for failure to satisfy some technical requirement which, because

12 of deficiencies in the prison's legal assistance facilities, he could not have known; and a

13 prisoner who had “suffered arguably actionable harm” that he wished to bring to the

14 attention of the court, but was so stymied by the inadequacies of the library that he was

15 unable even to file a complaint. Id.

16 Plaintiff’s allegations are again insufficient to state an access to the courts claim.

17 First of all, there is no indication that the mail room is part of the prison’s legal access

18 program such that the incident amounts to an inadequacy in said program. But even if it

19 did, Plaintiff once again also fails to allege actual injury due to Defendants’ actions. The

20 fact that there was a delay in the mail is not sufficient. See Hudson v. Robinson, 678 F.2d

21 462, 466 (3d Cir. 1982) (mere delay in filing papers not enough if they were nevertheless

22 timely filed or accepted and considered by the court). Plaintiff was advised that in

23 amended this claim, he should identify the non-frivolous claim(s) which he was hindered

24 from pursuing. Dkt. No. 5 at 6. He has failed to do so.

25 Plaintiff was already afforded one opportunity to amend this claim, and the Court

26 finds no good cause to grant him another opportunity where the amended complaint did

1 1261. Accordingly, this claim must be dismissed for failure to state a claim.

2 2. Second Cause of Action

3 Plaintiff claims Defendants John/Jane Doe and S. Benavides acted in retaliation for

4 his filing 602 appeals against the mailroom. See supra at 2. The Court dismissed this

5 claim for failure to state sufficient facts in support of such a claim. Dkt. No. 5 at 6-7.

6 “Within the prison context, a viable claim of First Amendment retaliation entails

7 five basic elements: (1) An assertion that a state actor took some adverse action against an

8 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

9 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

10 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

11 Cir. 2005) (footnote omitted). Plaintiff’s allegations in the amended complaint are now

12 sufficient to satisfy all the Rhodes elements in that he claims that Defendants took adverse

13 action by returning his mail without sending it because Plaintiff filed appeals against them,

14 of which they were aware because they were interviewed regarding those appeals, and

15 their actions did not reasonably advance legitimate correctional goals. This action can

16 proceed on this retaliation claim.

17 3. Third Cause of Action

18 Plaintiff claims that Defendants John/Jane Doe and S. Benavides violated his First

19 Amendment rights on December 21, 2021, when they opened his legal/confidential mail

20 outside of his presence, read it, and then sent it through regular mail. See supra at 2-3.

21 The Court dismissed this claim from the original complaint for failure to state a claim for

22 relief. Dkt. No. 5 at 7-8.

23 Prison officials may institute procedures for inspecting “legal mail,” e.g., mail sent

24 between attorneys and prisoners, see Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974)

25 (incoming mail from attorneys), and mail sent from prisoners to the courts, see Royse v.

26 Superior Court, 779 F.2d 573, 574-75 (9th Cir. 1986) (outgoing mail to court). “Legal

1 F.3d 1261, 1269 (9th Cir. 1994), rev'd on other grounds, 518 U.S. 343 (1996). However,

2 mail from the courts, as contrasted to mail from a prisoner's lawyer, is not “legal mail.”

3 See Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir.

4 1998). Accordingly, prison officials may open and inspect mail to a prisoner from courts

5 outside the prisoner’s presence because mail from courts, as opposed to mail from a

6 prisoner’s lawyer, is not “legal mail.” Hayes v. Idaho Correctional Center, 849 F.3d 1204,

7 1211 (9th Cir. 2017); Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended, 135

8 F.3d 1318 (9th Cir. 1998). With minute exceptions, correspondence from a court to a

9 litigant is a public document. See Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987).

10 Plaintiff again raises this claim in the amended complaint, asserting that the CDCR

11 policy and regulations treat mail from the court as “legal” mail and therefore, Defendants’

12 failure to abide to those regulations violated his rights. Dkt. No. 12 at 6. However, the

13 violation of mere state laws and regulations does not satisfy the first element for a § 1983

14 claim, i.e., that a right secured by the Constitution or laws of the Untied States was

15 violated. West v. Atkins, 487 U.S. at 48. To state a claim a plaintiff must show a specific

16 constitutional or federal guarantee safeguarding the interests that have been invaded. See

17 Paul v. Davis, 424 U.S. 693, 697 (1976). Accordingly, this claim was properly dismissed

18 for failure to state a claim for relief from the original complaint and shall again be

19 dismissed from the amended complaint for the same reason.

20 4. Fourth Cause of Action

21 Plaintiff claims that Defendant Lt. John Doe and John Doe Appeals Coordinator

22 violated his right to due process by denying his 602 appeal regarding the opening and

23 reading of his legal mail outside of his presence, and that their actions were retaliatory.

24 See supra at 3. Plaintiff also challenges the way his appeals on the matter were handled

25 thereafter. Id. at 12. The Court dismissed the claim that he was denied his right to file

26 grievances in the original complaint for failure to state a claim for relief. Dkt. No. 5 at 9-

1 allege sufficient facts to satisfy all the Rhodes elements. Id. at 10.

2 California Code of Regulations, title 15 sections 1073 and 3084 grant prisoners in

3 the county jails and state prisons a purely procedural right: the right to have a prison

4 appeal.2 The regulations simply require the establishment of a procedural structure for

5 reviewing prisoner complaints and set forth no substantive standards; instead, they provide

6 for flexible appeal time limits, see Cal. Code Regs. tit. 15, § 3084.6, and, at most, that “no

7 reprisal shall be taken against an inmate or parolee for filing an appeal,” id. § 3084.1(d). A

8 provision that merely provides procedural requirements, even if mandatory, cannot form

9 the basis of a constitutionally cognizable liberty interest. See Smith v. Noonan, 992 F.2d

10 987, 989 (9th Cir. 1993); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)

11 (prison grievance procedure is procedural right that does not give rise to protected liberty

12 interest requiring procedural protections of Due Process Clause); Buckley v. Barlow, 997

13 F.2d 494, 495 (8th Cir. 1993) (same); Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill.

14 1982) (same). A prison official’s failure to process grievances, without more, accordingly

15 is not actionable under § 1983. See Buckley, 997 F.2d at 495; see also Ramirez v. Galaza,

16 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s claimed loss of a liberty interest

17 in the processing of his appeals does not violate due process because prisoners lack a

18 separate constitutional entitlement to a specific prison grievance system). Although there

19 certainly is a right to petition the government for redress of grievances (a First Amendment

20 right), there is no right to a response or any particular action. See Flick v. Alba, 932 F.2d

21 728, 729 (8th Cir. 1991) (“prisoner’s right to petition the government for redress ... is not

22 compromised by the prison’s refusal to entertain his grievance.”).

23 Here, the allegations once again indicate that Plaintiff was not denied his right to

24 file grievances because he was clearly able to file an appeal on the relevant issues.

25 Furthermore, he again challenges the way Defendants handled his grievances and the

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1 outcomes. However, the case law on the subject makes it clear that due process is not

2 violated by the mere denial of a grievance or even the refusal to entertain it. Nor is

3 Plaintiff entitled to a specific outcome. Accordingly, this due process claim must be

4 DENIED for failure to state a claim for relief.

5 Plaintiff’s claim that the denials of his appeal were retaliatory is also insufficient.

6 Assuming that the denial of an appeal constitutes adverse action to satisfy the first element,

7 Plaintiff still fails to satisfy the second and fourth Rhodes elements, i.e., causation and

8 chilling effect. Plaintiff’s assertion that the Appeals Coordinator denied the appeal in

9 retaliation for filing the appeal in the first place is conclusory and circular. If such an

10 assertion alone was sufficient to satisfy the first, second and third elements, then every

11 denial of an appeal could potentially be grounds for a retaliation claim. Without more,

12 Plaintiff fails to establish that these Defendants acted out of “retaliatory animus” to

13 “silence and to punish” Plaintiff, as opposed to for some other reason. See Shephard, 840

14 F.3d at 689-91. Furthermore, Plaintiff does not allege that their actions chilled the exercise

15 of his First Amendment rights.

16 Plaintiff was already afforded one opportunity to amend this claim, and the Court

17 finds no good cause to grant him another opportunity where the amended complaint did

18 not correct the deficiency from the original. Wagh, 363 F.3d at 830; Ferdik, 963 F.2d at

19 1261. Accordingly, this claim must be dismissed for failure to state a claim.

20 C. John and Jane Doe Defendants

21 The only cognizable claim in this action is under Plaintiff’s second cause of action,

22 i.e., retaliation by Defendants John/Jane Doe and S. Benavides. Although the use of “John

23 Doe” to identify a defendant is not favored in the Ninth Circuit, see Gillespie v. Civiletti,

24 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep't of Corrections, 406 F.2d 515, 518

25 (9th Cir. 1968), situations may arise where the identity of alleged defendants cannot be

26 known prior to the filing of a complaint. In such circumstances, the plaintiff should be

1 clear that discovery would not uncover their identities or that the complaint should be

2 dismissed on other grounds. See Gillespie, 629 F.2d at 642; Velasquez v. Senko, 643 F.

3 Supp. 1172, 1180 (N.D. Cal. 1986). Here, it appears that Plaintiff may be able to identify

4 the appropriate Defendants by name through discovery. Therefore, Plaintiff shall be given

5 an opportunity to identify John and Jane Doe Defendants through discovery and file a

6 motion to amend to add their proper names to this action in the time provided below.

7 D. Defendant Warden T. Allen

8 Plaintiff names Warden T. Allen for the first time in this action in the amended

9 complaint. Dkt. No. 12 at 2. However, nowhere in the amended complaint does Plaintiff

10 make any specific factual allegations against Warden Allen under any of the four causes of

11 action discussed. Dkt. No. 12 at 2-9. Nor does Plaintiff state that he seeks any type of

12 relief against the Warden. Id. at 10-11.

13 Plaintiff was already afforded one opportunity to file an amended complaint, and

14 the Court finds no good cause to grant him another opportunity to file a second amended

15 complaint to state a claim against a new Defendant who does appear to have had any direct

16 involvement in the underlying incident. Wagh, 363 F.3d at 830; Ferdik, 963 F.2d at 1261.

17 Accordingly, Defendant Allen shall be dismissed from this action.

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19 CONCLUSION

20 For the foregoing reasons, the Court orders as follows:

21 1. The following claims are DISMISSED with prejudice for failure to state a

22 claim for relief: (1) under the first cause of action, First Amendment freedom of speech

23 claim and right of access to the courts claim; (2) under the third cause of action, the claim

24 involving out-of-presence inspection of non-legal mail from the courts; and (3) under the

25 fourth cause of action, the due process claim and retaliation claim for the denial of his 602

26 appeals.

1 cause of action of the amended complaint against Defendants S. Benavides and the

2 John/Jane Doe Defendants in the mailroom. See supra at 6-7.

3 The Clerk shall terminate all other Defendants from this action, including Warden

4 T. Allen, as Plaintiff fails to state any claim against them.

5 3. The following defendant shall be served at SVSP:

6 a. S. Benavides, Mailroom Supervisor

7 Service on the listed defendant(s) shall proceed under the California Department of

8 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from

9 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve

10 on CDCR via email the following documents: the operative complaint and any attachments

11 thereto, Dkt. No. 12, this order of service, and a CDCR Report of E-Service Waiver form.

12 The clerk also shall serve a copy of this order on the plaintiff.

13 No later than 40 days after service of this order via email on CDCR, CDCR shall

14 provide the court a completed CDCR Report of E-Service Waiver advising the court which

15 defendant(s) listed in this order will be waiving service of process without the need for

16 service by the United States Marshal Service (USMS) and which defendant(s) decline to

17 waive service or could not be reached. CDCR also shall provide a copy of the CDCR

18 Report of E-Service Waiver to the California Attorney General’s Office which, within 21

19 days, shall file with the court a waiver of service of process for the defendant(s) who are

20 waiving service.

21 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for

22 each defendant who has not waived service according to the CDCR Report of E-Service

23 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205

24 forms and copies of this order, the summons and the operative complaint for service upon

25 each defendant who has not waived service. The clerk also shall provide to the USMS a

26 copy of the CDCR Report of E-Service Waiver.

1 Defendants shall file a motion for summary judgment or other dispositive motion with

2 respect to the claims in the complaint found to be cognizable above.

3 a. Any motion for summary judgment shall be supported by adequate

4 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of

5 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor

6 qualified immunity found, if material facts are in dispute. If any Defendant is of the

7 opinion that this case cannot be resolved by summary judgment, he shall so inform the

8 Court prior to the date the summary judgment motion is due.

9 b. In the event Defendants file a motion for summary judgment, the

10 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate

11 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See

12 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012).

13 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court

14 and served on Defendants no later than twenty-eight (28) days from the date Defendants’

15 motion is filed.

16 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and

17 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment

18 must come forward with evidence showing triable issues of material fact on every essential

19 element of his claim). Plaintiff is cautioned that failure to file an opposition to

20 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to

21 the granting of the motion, and granting of judgment against Plaintiff without a trial. See

22 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18

23 F.3d 651, 653 (9th Cir. 1994).

24 6. Defendants shall file a reply brief no later than fourteen (14) days after

25 Plaintiff’s opposition is filed.

26 7. The motion shall be deemed submitted as of the date the reply brief is due.

1 8. All communications by the Plaintiff with the Court must be served on

2 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true

3 || copy of the document to Defendants or Defendants’ counsel.

4 9. Discovery may be taken in accordance with the Federal Rules of Civil

5 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local

6 || Rule 16-1 is required before the parties may conduct discovery.

7 10. While conducting discovery, Plaintiff is directed to attempt to ascertain the

8 || name of mailroom employees, John and Jane Does, and file a motion to substitute the

9 || operative complaint with these Defendants’ proper names no later than fifty-six (56) days

10 || from the date this order is filed. Failure to do so will result in the dismissal of the claims

11 || against these Doe Defendants for failure to state a claim for relief.

2 11. ‘It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the

E 13 || court informed of any change of address and must comply with the court’s orders in a

S 14 timely fashion. Failure to do so may result in the dismissal of this action for failure to

3 15 || prosecute pursuant to Federal Rule of Civil Procedure 41(b).

16 12. Extensions of time must be filed no later than the deadline sought to be

5 17 || extended and must be accompanied by a showing of good cause.

5 18 IT IS SO ORDERED.

19 || Dated: — March 22,2024 > Ais / Wh, (ah z |

50 BETH LABSON F REEMAN

United States District Judge

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