Johnson v. Ascencio

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 LACEDRIC WILLIAMS JOHNSON, 10 Case No. 24-cv-05675 EJD (PR) Plaintiff, 11 ORDER OF PARTIAL DISMISSAL AND OF SERVICE; DIRECTING 12 v. DEFENDANTS TO FILE DISPOSITIVE MOTION OR 13 TODAN ASCENCIO, NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 14 Defendant. CLERK 15 16 17 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 18 U.S.C. § 1983 against a correctional officer at San Quentin Rehabilitation Center 19 (“SQRC”), where he is currently incarcerated. Dkt. No. 1. On December 26, 2024, the 20 Court dismissed the complaint with leave to amend to correct the deficiency with respect 21 to Plaintiff’s free exercise of religion claim. Dkt. No. 5. Plaintiff was advised that failure 22 to respond in accordance with the order in the time provided would result in the dismissal 23 of the free exercise of religion claim and related state law claim with prejudice without 24 further notice to Plaintiff. Id. at 4. The action would then proceed on the cognizable 25 retaliation claim and related state law claims identified therein. Id. 26 The time to file an amended complaint has passed with no response from Plaintiff. 27 Accordingly, this matter will proceed on the retaliation claim and related state law claims 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 In the Order of Dismissal with Leave to Amend, the Court stated as follows: 16 Plaintiff names only one defendant: Todan Ascencio, an 17 investigative security unit officer at SQRC. Dkt No. 1 at 2. Plaintiff claims Defendant Ascencio retaliated against him with threats, intimidation, and 18 fabrication of a disciplinary report because Plaintiff aided another prisoner in filing a grievance against Defendant. Id. at 5-6, 11. Plaintiff claims 19 Defendant’s actions caused “fear and anxiety.” Id. at 5. Plaintiff alleges 20 that Defendant later violated his First Amendment right to the free exercise of religion by searching and contaminating his Ramadan meal on March 28, 21 2024. Id. at 8-9, 11-12. He also claims Defendant violated California 22 Government Code § 52.1 by intentionally interfering with his First Amendment rights, and other state pendent claims which are identified as 23 Claims III, IV, V. Id. at 14-19. Plaintiff seeks declaratory relief and damages. Id. at 11. 24 25 Plaintiff’s allegations, liberally construed, are sufficient to state a retaliation claim. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 26 2005) (footnote omitted). It also appears that Plaintiff’s state law claims 27 under “Claim IV” and “Claim V” are so related to the retaliation claim such that “they form part of the same case or controversy under Article III of the U.S.C. § 1367(a). 1 Dkt. No. 5 at 2. The Court found the allegations were insufficient to state a claim for the 2 violation of Plaintiff’s right to the free exercise of religion under the First Amendment. Id. 3 at 3. Because Plaintiff has failed to file an amended complaint correcting the deficiency, 4 the claim will be dismissed with prejudice. 5 CONCLUSION 6 For the foregoing reasons, the Court orders as follows: 7 1. Plaintiff’s claim for the violation of his right to the free exercise of his 8 religion under the First Amendment and related state law claims are DISMISSED with 9 prejudice for failure to state a cognizable claim for relief. This action shall proceed on the 10 cognizable retaliation claim and related state law claims. 11 2. Defendant Todan Ascencio shall be served at SQRC. 12 Service on the listed defendant(s) shall proceed under the California Department of 13 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 14 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 15 on CDCR via email the following documents: the operative complaint and any attachments 16 thereto, (Dkt. No. 1), this order of service, a CDCR Report of E-Service Waiver form. The 17 clerk also shall serve a copy of this order on the plaintiff. 18 No later than 40 days after service of this order via email on CDCR, CDCR shall 19 provide the court a completed CDCR Report of E-Service Waiver advising the court which 20 defendant(s) listed in this order will be waiving service of process without the need for 21 service by the United States Marshal Service (USMS) and which defendant(s) decline to 22 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 23 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 24 days, shall file with the court a waiver of service of process for the defendant(s) who are 25 waiving service. 26 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 27 1 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 2 forms and copies of this order, the summons and the operative complaint for service upon 3 each defendant who has not waived service. The clerk also shall provide to the USMS a 4 copy of the CDCR Report of E-Service Waiver. 5 3. No later than ninety-one (91) days from the date this order is filed, 6 Defendants shall file a motion for summary judgment or other dispositive motion with 7 respect to the claims in the complaint found to be cognizable above. 8 a. Any motion for summary judgment shall be supported by adequate 9 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 10 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 11 qualified immunity found, if material facts are in dispute. If any Defendant is of the 12 opinion that this case cannot be resolved by summary judgment, he shall so inform the 13 Court prior to the date the summary judgment motion is due. 14 b. In the event Defendants file a motion for summary judgment, the 15 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 16 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 17 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 18 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 19 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 20 motion is filed. 21 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 22 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 23 must come forward with evidence showing triable issues of material fact on every essential 24 element of his claim). Plaintiff is cautioned that failure to file an opposition to 25 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 26 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 27 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 1 5. Defendants shall file a reply brief no later than fourteen (14) days after 2 || Plaintiffs opposition 1s filed. 3 6. The motion shall be deemed submitted as of the date the reply brief is due. 4 || No hearing will be held on the motion unless the Court so orders at a later date. 5 7. All communications by the Plaintiff with the Court must be served on 6 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 7 || copy of the document to Defendants or Defendants’ counsel. 8 8. Discovery may be taken in accordance with the Federal Rules of Civil 9 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 10 || Rule 16-1 is required before the parties may conduct discovery. 1] 9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 12 | court informed of any change of address and must comply with the court’s orders in a 13 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 14 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 3 15 10. Extensions of time must be filed no later than the deadline sought to be a 16 || extended and must be accompanied by a showing of good cause. 17 IT IS SO ORDERED. Z 18 || Dated: February 18, 2025 aeOD. 19 EDWARD J. DAVILA United States District Judge 20 21 22 23 24 25 26 27 28