Fowler v. Gomez et al

Filing 9

ORDER of Service, denying re 8 MOTION to Appoint Counsel filed by Antoine L. Fowler.. Signed by Judge Charles R. Breyer on 5/19/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 5/20/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANTOINE FOWLER, 10664569,
Plaintiff(s),

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vs.

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SGT. GOMEZ, et al.,
Defendant(s).

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No. C 10-3696 CRB (PR)
ORDER OF SERVICE
(Docket # 8)

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Plaintiff, a prisoner at the San Francisco County Jail (SFCJ), has filed a

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pro se First Amended Complaint (FAC) for damages under 42 U.S.C. § 1983

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alleging that Sgt. Gomez subjected him to cruel and unusual punishment when

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Gomez ordered deputies to cuff and place plaintiff in a restraining cell for over an

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hour while they searched plaintiff's cell, and directed deputies to disregard

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plaintiff's pleas to use the bathroom until they finished searching plaintiff's cell.

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According to plaintiff, this resulted in his urinating on himself while still cuffed

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and being left in urinated clothes for an hour.

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Plaintiff also seeks appointment of counsel.

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which

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prisoners seek redress from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

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claims or dismiss the complaint, or any portion of the complaint, if the complaint

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"is frivolous, malicious, or fails to state a claim upon which relief may be

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granted," or "seeks monetary relief from a defendant who is immune from such

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relief." Id. § 1915A(b). Pro se pleadings must be liberally construed, however.

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting

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under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims
A prison official violates the Eighth Amendment when two requirements

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are met: (1) the deprivation alleged must be, objectively, sufficiently serious, and

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(2) the prison official possesses a sufficiently culpable state of mind. Farmer v.

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Brennan, 511 U.S. 825, 834 (1994).1 In prison-conditions cases such as the

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instant case, the necessary state of mind is one of deliberate indifference. See id.

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(inmate safety); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (inmate health). A

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prison official is deliberately indifferent if he knows that a prisoner faces a

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substantial risk of serious harm and disregards that risk by failing to take

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reasonable steps to abate it. Farmer, 511 U.S. at 837.

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Liberally construed, plaintiff's allegations that Sgt. Gomez's direction to

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the deputies to disregard plaintiff's pleas to use the bathroom until they finished

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searching plaintiff's cell resulted in plaintiff urinating on himself while still

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cuffed and being left in urinated clothes for an hour appears to state a cognizable

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Although a pretrial detainee's claims arise under the Due Process Clause,
the Eighth Amendment serves as a benchmark for evaluating those claims. See
Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (8th Amendment guarantees
provide minimum standard of care for pretrial detainees).

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§ 1983 claim for deliberate indifference against Sgt. Gomez. All other

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defendants are dismissed.

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C.

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Motion for Appointment of Counsel
Plaintiff's motion for appointment of counsel (docket # 8) is DENIED for

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lack of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

The clerk shall issue summons and the United States Marshal shall

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

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attachments thereto, and copies of this order on SFCJ Sgt. Gomez at Sheriff's

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Department, City Hall, Room 456, 1 Dr. Carlton B. Goodlett Place, San Francisco, CA

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94102. The clerk also shall serve a copy of this order on plaintiff.

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2.

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follows:

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

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No later than 90 days from the date of this order, defendant

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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

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

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

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issue. If defendant is of the opinion that this case cannot be resolved by summary

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judgment or other dispositive motion, he shall so inform the court prior to the

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date his motion is due. All papers filed with the court shall be served promptly

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on plaintiff.

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b.

Plaintiff's opposition to the dispositive motion shall be filed

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

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serves plaintiff with the motion.
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Plaintiff is advised that a motion for summary judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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).

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

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

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

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

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

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n.14 (9th Cir. 2003).

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d.

Defendant shall file a reply brief within 15 days of the date

on which plaintiff serves him with the opposition.

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e.

The motion shall be deemed submitted as of the date the

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

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orders at a later date.

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3.

Discovery may be taken in accordance with the Federal Rules of

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

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conduct discovery.

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4.

All communications by plaintiff with the court must be served on

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defendant, or defendant's counsel once counsel has been designated, by mailing a

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true copy of the document to defendants or defendant's counsel.

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5.

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

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

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

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

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SO ORDERED.

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DATED: May 19, 2011
CHARLES R. BREYER
United States District Judge

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