Perkins v. Olson et al

Filing 5

ORDER OF SERVICE. Signed by Judge Vaughn R Walker on 7/28/2010. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 7/28/2010)

Perkins v. Olson et al

Doc. 5

1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 USC § 1915A(a). Plaintiff, a prisoner incarcerated at San Quentin State Prison, has filed a pro se complaint under 42 USC § 1983 against three San Francisco Police Officers claiming they used excessive force against him during his arrest. #1. Plaintiff seeks damages. Doc v SAN FRANCISCO POLICE OFFICERS OLSON, LUCAS AND KENNEY, Defendant(s). / RODERICK PERKINS, Plaintiff, ORDER OF SERVICE No C-10-0156-VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

The court must identify cognizable claims or dismiss the complaint,

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or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id § 1915A(b). Pleadings filed by pro se Balistreri v

litigants, however, must be liberally construed.

Pacifica Police Dep't, 901 F2d 696, 699 (9th Cir 1990). To state a claim under 42 USC § 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. West v Atkins, 487 US 42, 48 (1988).

II A claim that a law enforcement officer used excessive force in the course of an arrest or other seizure is analyzed under the Fourth Amendment reasonableness standard. See Graham v Connor,

490 US 386, 394­95 (1989); Forrester v City of San Diego, 25 F3d 804, 806 (9th Cir 1994), cert denied, 513 US 1152 (1995). "Determining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of `the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." (citations omitted). In his complaint, plaintiff alleges that on May 23, 2009, San Francisco Police Officer Olson, Badge #376, Sergeant C Lucas, See Graham, 490 US at 396

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Badge #912 and Officer Matthew Kenney, Badge #572, used excessive force against him during his arrest. Specifically, plaintiff claims

he was struck with a baton three times and that after he had fallen to the ground and was lying on his stomach officers stepped on his back and neck. Following his arrest, plaintiff was taken to San

Francisco General Hospital and treated for injuries sustained during the arrest. Doc #1.

Liberally construed, plaintiff's complaint appears to state a cognizable Fourth Amendment claim and the three named defendants will be served. 25 F3d at 806. See Graham, 490 US at 394­95; Forrester,

III 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 defendants San Francisco Police Officer Olson, Badge #376, Sergeant C Lucas, Badge #912 and Officer Matthew Kenney, Badge #572, by bringing said copies to Police Legal, Room 575 (5th Floor), Hall of Justice, 850 Bryant Street, San Francisco. shall serve a copy of this order on plaintiff. 2. In order to expedite the resolution of this case, the The clerk also

court orders as follows: a. No later than ninety (90) days from the date of

this order, defendants shall file a motion for summary judgment or

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other dispositive motion.

A motion 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 thirty (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 Generally, summary

order to oppose a motion for summary judgment.

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

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the facts shown in the defendants' 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 F3d 952, 962-63 (9th Cir 1998) (en banc) (App A). Plaintiff also is advised that a motion to dismiss for failure to exhaust administrative remedies under 42 USC § 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. 2003). d. Defendants shall file a reply brief within Wyatt v Terhune, 315 F3d 1108, 1120 n14 (9th Cir

fifteen (15) days of the date on which plaintiff serves them with the opposition. e. The motion shall be deemed submitted as of the No hearing will be held on the motion

date the reply brief is due.

unless the court so orders at a later date. 3. Discovery may be taken in accordance with the Federal No further court order is required before

Rules of Civil Procedure.

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

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defendants or defendants' counsel. 5. case. It is plaintiff's responsibility to prosecute this

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).

IT IS SO ORDERED. VAUGHN R WALKER United States District Chief Judge

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