Hawkins v. Starosciak

Filing 8

ORDER OF SERVICE. Signed by Judge Vaughn R Walker on 8/30/2010. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 8/30/2010)

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Hawkins v. Starosciak Doc. 8 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 Plaintiff, a prisoner presently incarcerated at Pelican Bay State Prison, has filed a pro se civil rights complaint under 42 USC 1983 alleging that Alameda County sheriff's Deputy Starosciak was deliberately indifferent to plaintiff's safety while he was a pretrial detainee in the Alameda County jail. Specifically, v DEPUTY STAROSCIAK, Defendant. / JEFF HAWKINS, Plaintiff, ORDER OF SERVICE No C-10-0248 VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA plaintiff alleges that on November 1, 2005, Deputy Starosciak placed plaintiff in a holding cell with a known enemy who attacked and severely injured plaintiff. Plaintiff alleges that Deputy Starosciak knew that plaintiff and the other detainee were subject to a "keep separate" order and that Deputy Starosciak deliberately ignored the order and failed to take any action to protect Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff. Plaintiff seeks damages. 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). The court must identify cognizable claims or dismiss the complaint, 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 The Eighth Amendment requires that prison officials take reasonable measures to guarantee the safety of prisoners. Brennan, 511 US 825, 832 (1994). Farmer v In particular, prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Id at 833; Hearns v Terhune, 413 F3d 1036, 1040 (9th Cir 2005); Hoptowit v Ray, 682 F2d 1237, 1250 (9th Cir 1982); Gillespie 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v Civiletti, 629 F2d 637, 642 & n3 (9th Cir 1980). A pretrial detainee is not protected by the Eighth Amendment, however, because he has not been convicted of a crime. See Bell v Wolfish, 441 US 520, 535 & n16 (1979). Instead, pretrial detainees are afforded protection under the Due Process Clause of the Fourteenth Amendment. See United States v Salerno, 481 US 739, The protections of the Due 74647 (1987); Bell, 441 US at 53536. Process Clause are at least as great as those of the Eighth Amendment. See Revere v Massachusetts General Hosp, 463 US 239, 244 In (1983); Gary H v Hegstrom, 831 F2d 1430, 1432 (9th Cir 1987). the Ninth Circuit, "deliberate indifference is the level of culpability that pretrial detainees must establish for a violation of their personal security interests under the [F]ourteenth [A]mendment." Redman v County of San Diego, 942 F2d 1435, 1443 (9th Cir 1991) (en banc), cert denied, 502 US 1074 (1992). Liberally construed, plaintiff's allegations against Deputy Starosciak described above appear to state a cognizable 42 USC 1983 claim for a due process violation and defendant will be served. 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 and all attachments thereto and copies of this order on defendant. The clerk also shall serve a copy of this 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 order on plaintiff. 2. To expedite the resolution of this case, the court orders as follows: a. No later than ninety (90) days from the date of this order, defendant shall file a motion for summary judgment or 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 defendant is of the opinion that this case cannot be resolved by summary judgment or other dispositive motion, he shall so inform the court prior to the date his 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 defendant no later than thirty (30) days after defendant serves 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 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 contradict the facts shown in 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 F3d 952, 96263 (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 defendant in his motion to dismiss. 2003). d. Defendant 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 him 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 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 defendant, or defendant's counsel once counsel has been designated, by mailing a true copy of the document to defendant or defendant's 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 G:\PRO-SE\VRW\CR.10\Hawkins-10-0248-order of service.wpd 6

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