1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 ANTHONY WAYNE OLIVER, 10 Case No. 22-cv-04201 EJD (PR) Plaintiff, 11 ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE 12 v. DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 13 MOTION; INSTRUCTIONS TO M. ZAVALA, CLERK 14 Defendant. 15

16 17 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42

against a correctional officer at the California Training Facility (“CTF”) in 19 Soledad. Dkt. No. 1. Plaintiff filed a motion for leave to proceed in forma pauperis which 20 will be addressed in a separate order. Dkt. No. 2. 21 22 DISCUSSION 23 A. Standard of Review 24 A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 27 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 1 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 2 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 3 To state a claim under

, a plaintiff must allege two essential 4 elements: (1) that a right secured by the Constitution or laws of the United States was 5 violated, and (2) that the alleged violation was committed by a person acting under the 6 color of state law. See West v. Atkins,

(1988). 7 B. Plaintiff’s Claims 8 Plaintiff claims Defendant Officer M. Zavala violated his First Amendment right 9 against retaliation by taking adverse actions against him for filing and assisting another 10 prisoner in filing grievances, and that Officer Zavala’s retaliatory actions caused a chilling 11 effect. Dkt. No. 1 at 10-11. These allegations are sufficient to state a cognizable claim 12 under § 1983. 13 CONCLUSION 14 For the reasons set forth above, the Court orders as follows: 15 1. Defendant Correctional Officer M. Zavala shall be served at CTF. 16 Service on the listed defendant(s) shall proceed under the California Department of 17 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 18 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 19 on CDCR via email the following documents: the operative complaint and any attachments 20 thereto, Dkt. No. 1, this order of service, and a CDCR Report of E-Service Waiver form. 21 The clerk also shall serve a copy of this order on the plaintiff. 22 No later than 40 days after service of this order via email on CDCR, CDCR shall 23 provide the court a completed CDCR Report of E-Service Waiver advising the court which 24 defendant(s) listed in this order will be waiving service of process without the need for 25 service by the United States Marshal Service (USMS) and which defendant(s) decline to 26 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 27 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 1 waiving service. 2 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 3 each defendant who has not waived service according to the CDCR Report of E-Service 4 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 5 forms and copies of this order, the summons and the operative complaint for service upon 6 each defendant who has not waived service. The clerk also shall provide to the USMS a 7 copy of the CDCR Report of E-Service Waiver. 8 2. No later than ninety-one (91) days from the date this order is filed, 9 Defendant shall file a motion for summary judgment or other dispositive motion with 10 respect to the claims in the complaint found to be cognizable above. 11 a. Any motion for summary judgment shall be supported by adequate 12 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 13 Civil Procedure. Defendant is advised that summary judgment cannot be granted, nor 14 qualified immunity found, if material facts are in dispute. If Defendant is of the opinion 15 that this case cannot be resolved by summary judgment, he shall so inform the Court prior 16 to the date the summary judgment motion is due. 17 b. In the event Defendant files a motion for summary judgment, the 18 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 19 warnings under Rand v. Rowland,

(9th Cir. 1998) (en banc). See 20 Woods v. Carey,

(9th Cir. 2012). 21 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 22 and served on Defendant no later than twenty-eight (28) days from the date Defendant’s 23 motion is filed. 24 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 25 Celotex Corp. v. Catrett,

(1986) (holding party opposing summary judgment 26 must come forward with evidence showing triable issues of material fact on every essential 27 element of his claim). Plaintiff is cautioned that failure to file an opposition to 1 || the granting of the motion, and granting of judgment against Plaintiff without a trial. See 2 || Ghazali v. Moran,

(9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 3 || F.3d 651, 653 (9th Cir. 1994). 4 4. Defendant shall file a reply brief no later than fourteen (14) days after 5 || Plaintiff's opposition is filed. 6 5. The motion shall be deemed submitted as of the date the reply brief is due. 7 || No hearing will be held on the motion unless the Court so orders at a later date. 8 6. All communications by the Plaintiff with the Court must be served on 9 || Defendant, or Defendant’s counsel once counsel has been designated, by mailing a true 10 || copy of the document to Defendant or Defendant’s counsel. 1] 7. Discovery may be taken in accordance with the Federal Rules of Civil 12 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local E 13 || Rule 16-1 is required before the parties may conduct discovery. S 14 8. It is Plaintiffs responsibility to prosecute this case. Plaintiff must keep the 3 15 || court informed of any change of address and must comply with the court’s orders in a 16 || timely fashion. Failure to do so may result in the dismissal of this action for failure to i 17 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 18 9. Extensions of time must be filed no later than the deadline sought to be 19 || extended and must be accompanied by a showing of good cause. 20 IT IS SO ORDERED. 21 Dated: November 30, 2022 aD. 7 EDWARD J. DAVILA United States District Judge 23 24 25 26 27 28