Oliveras-Beritan v. Blackburn

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JOSE OLIVERAS-BERITAN,
Plaintiff,
v.
SHIRLEY BLACKBURN,
Defendant.
Case No. 25-cv-11114-TSH
ORDER OF SERVICE
Plaintiff, an inmate housed at Pelican Bay State Prison (“PBSP”), has filed a pro se action
pursuant to 42 U.S.C. § 1983. Plaintiff has paid the filing fee, Dkt. No. 8, and consented to
magistrate judge jurisdiction, Dkt. No. 9. Plaintiff’s complaint, Dkt, No. 1, is now before the
Court for review pursuant to 28 U.S.C. § 1915A.
DISCUSSION
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims
that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek
monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),
(2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d
989, 993 (9th Cir. 2020).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not
necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the
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United States District Court
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grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While Rule 8 does not require detailed factual allegations, it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).
A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a
cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a
right secured by the Constitution or laws of the United States was violated, and (2) that the alleged
violation was committed by a person acting under the color of state law. See West v. Atkins, 487
U.S. 42, 48 (1988).
B. Complaint
Plaintiff Oliveras-Beritan is suing Pelican Bay State Prison training officer S. Blackburn
for issuing Plaintiff a rules violation report for speaking his native language, Spanish. Plaintiff
was found not guilty of the RVR because there is no rule or policy dictating that an inmate cannot
speak a foreign language even if the staff member does not understand what is being said.
Liberally construed, Plaintiff has stated a cognizable First Amendment retaliation claim against
defendant Blackburn. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the
prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An
assertion that a state actor took some adverse action against an inmate (2) because of (3) that
prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First
Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”)
(footnote omitted); Yniguez v. Arizonans for Official English, 69 F.3d 920, 936 (9th Cir. 1995),
(striking down Arizona English-only law as facially overbroad and in violation of First
Amendment right to speech because decision to speak non-English language implicates pure
speech rights), vacated on other grounds sub nom Arizonans for Official English v. Arizona, 520
U.S. 43 (1997).
CONCLUSION
For the reasons set forth above, the Court orders as follows.
1. The following defendant(s) shall be served: Pelican Bay State Prison correctional
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United States District Court
Northern District of California
officer S. Blackburn.
Service on the listed defendant(s) shall proceed under the California Department of
Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners
in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the
CDCR via email the following documents: the operative complaint (Dkt. No. 1), this order of
service, a CDCR Report of E-Service Waiver form, a summons, and a consent or declination to
magistrate judge jurisdiction form. The Clerk also shall serve a copy of this order on the Plaintiff.
No later than 40 days after service of this order via email on the CDCR, the CDCR shall
provide the court a completed CDCR Report of E-Service Waiver advising the court which
defendant(s) listed in this order will be waiving service of process without the need for service by
the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or
could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service
Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court
a waiver of service of process for the defendant(s) who are waiving service.
Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each
defendant who has not waived service according to the CDCR Report of E-Service Waiver a
USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies
of this order, the summons, and the operative complaint for service upon each defendant who has
not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E-
Service Waiver.
2. The complaint states a cognizable First Amendment retaliation claim against
defendant S. Blackburn.
3. In order to expedite the resolution of this case, the Court orders as follows:
a. No later than 91 days from the date this order is filed, Defendant(s) must
file and serve a motion for summary judgment or other dispositive motion. If Defendant(s) is(are)
of the opinion that this case cannot be resolved by summary judgment, Defendant(s) must so
inform the Court prior to the date the motion is due. A motion for summary judgment also must
be accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of
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what is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th
Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be
served concurrently with motion for summary judgment).1
b. Plaintiff’s opposition to the summary judgment or other dispositive motion
must be filed with the Court and served upon Defendant(s) no later than 28 days from the date the
motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment
provided later in this order as he prepares his opposition to any motion for summary judgment.
Defendant(s) shall file a reply brief no later than 14 days after the date the opposition is filed. The
motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on
the motion.
4. 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, and 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(c), that contradict 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, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does
1 If Defendant(s) assert(s) that Plaintiff failed to exhaust his available administrative remedies as
required by 42 U.S.C. § 1997e(a), Defendant(s) 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) (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which
held that failure to exhaust available administrative remedies under the Prison Litigation Reform
Act, should be raised by a defendant as an unenumerated Rule 12(b) motion).
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not excuse Defendant’s obligation to serve said notice again concurrently with a motion for
summary judgment. Woods, 684 F.3d at 939).
5. All communications by Plaintiff with the Court must be served on Defendant’s
counsel by mailing a true copy of the document to Defendant’s counsel. The Court may disregard
any document which a party files but fails to send a copy of to his opponent. Until Defendant’s
counsel has been designated, Plaintiff may mail a true copy of the document directly to Defendant
but once Defendant is represented by counsel, all documents must be mailed to counsel rather than
directly to Defendant.
6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.
No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required
before the parties may conduct discovery.
7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the
Court 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 for failure to prosecute pursuant
to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every
pending case every time he is moved to a new facility.
8. Any motion for an extension of time must be filed no later than the deadline sought
to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that
he must include the case name and case number for this case on any document he submits to the
Court for consideration in this case.
IT IS SO ORDERED.
Dated: February 23, 2026
THOMAS S. HIXSON
United States Magistrate Judge
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