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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JONATHAN W. GRIGSBY, 

Plaintiff(s),

 vs.

ROBERT HOREL, et al., 

Defendant(s). 

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No. C 08-1475 CRB (PR)

ORDER OF SERVICE 

Plaintiff, a prisoner at Pelican Bay State Prison ("PBSP") and frequent

litigant in this court, filed a pro se civil rights complaint under 42 U.S.C. § 1983

alleging that in May thru August 2007 PBSP officials interfered with his mail and

with his efforts to obtain relief through California's prison administrative appeal

process. He also claimed denial of equal protection and various other

miscellaneous deprivations.

Per order filed on September 11, 2008, the court dismissed the complaint

for failure to state a claim upon which relief may be granted under the authority

of 28 U.S.C. § 1915A(b). Plaintiff appealed.

Per order filed on July 27, 2009, the Ninth Circuit affirmed in part,

vacated in part and remanded. The appellate court noted that although the district

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court had determined that plaintiff had only alleged isolated instances of delay

and possible interference, "at this stage of the proceedings, [plaintiff's]

allegations, liberally construed, present a First Amendment claim based on

defendants' alleged failure to send a letter and delay in delivering a priority mail

package." Grigsby v. Horel, No. 08-17181, slip op. at 2 (9th Cir. July 27, 2009)

(citations omitted) (unpublished memorandum disposition). The appellate court

also instructed the district court on remand to address plaintiff's claim based on

the alleged confiscation of stamps. Id. It affirmed the district court in all other

respects. See id. at 2-3.

Pursuant to the mandate of the Ninth Circuit, plaintiff's First Amendment

claim that defendants failed to send a letter and delayed the delivery of a priority

mail package will be served on the named defendants. So will his due process

claim that his one cent stamps were disapproved and confiscated. See

Zimmerman v. City of Oakland, 255 F.3d 734, 738 (9th Cir. 2001) (deprivation

of property pursuant to established state procedure may state due process claim;

Parratt does not apply where state has procedures designed to control actions of

state officials and officials act pursuant to those procedures). 

For the foregoing reasons and for good cause shown,

1. The clerk shall issue summons and the United States Marshal shall

serve, without prepayment of fees, copies of the complaint in this matter, all

attachments thereto, and copies of this order on the named defendants at PBSP. 

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

2. In order to expedite the resolution of this case, the court orders as

follows:

a. No later than 90 days from the date of this order, defendants

shall file a motion for summary judgment or other dispositive motion. A motion

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for summary judgment shall be supported by adequate factual documentation and

shall conform in all respects to Federal Rule of Civil Procedure 56, and shall

include as exhibits all records and incident reports stemming from the events at

issue. If defendants are of the opinion that this case cannot be resolved by

summary judgment or other dispositive motion, they shall so inform the court

prior to the date their motion is due. All papers filed with the court shall be

served promptly on plaintiff.

b. Plaintiff's opposition to the dispositive motion shall be filed

with the court and served upon defendants no later than 30 days after defendants

serve plaintiff with the motion. 

c. Plaintiff is advised that a motion for summary judgment

under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your

case. Rule 56 tells you what you must do in order to oppose a motion for

summary judgment. Generally, summary judgment must be granted when there

is no genuine issue of material fact – that is, if there is no real dispute about any

fact that would affect the result of your case, the party who asked for summary

judgment is entitled to judgment as a matter of law, which will end your case. 

When a party you are suing makes a motion for summary judgment that is

properly supported by declarations (or other sworn testimony), you cannot simply

rely on what your complaint says. Instead, you must set out specific facts in

declarations, depositions, answers to interrogatories, or authenticated documents,

as provided in Rule 56(e), that contradicts the facts shown in the defendant's

declarations and documents and show that there is a genuine issue of material

fact for trial. If you do not submit your own evidence in opposition, summary

judgment, if appropriate, may be entered against you. If summary judgment is

granted, your case will be dismissed and there will be no trial. Rand v. Rowland,

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154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App A).

Plaintiff is also advised that a motion to dismiss for failure to exhaust

administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your

case, albeit without prejudice. You must "develop a record" and present it in

your opposition in order to dispute any "factual record" presented by the

defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1120

n.14 (9th Cir. 2003).

d. Defendants shall file a reply brief within 15 days of the date

on which plaintiff serves them with the opposition. 

e. The motion shall be deemed submitted as of the date the

reply brief is due. No hearing will be held on the motion unless the court so

orders at a later date. 

3. Discovery may be taken in accordance with the Federal Rules of

Civil Procedure. No further court order is required before the parties may

conduct discovery.

4. All communications by plaintiff with the court must be served on

defendants, or defendants' counsel once counsel has been designated, by mailing

a true copy of the document to defendants or defendants' counsel.

5. It is plaintiff's responsibility to prosecute this case. Plaintiff must

keep the court and all parties informed of any change of address and must comply

with the court's orders in a timely fashion. Failure to do so may result in the

dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b).

SO ORDERED.

DATED: Jan. 7, 2010 

CHARLES R. BREYER

United States District Judge

G:\PRO-SE\CRB\CR.08\Grigsby, J2.serve.wpd

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