Turner v. Graff et al

Filing 16

ORDER OF SERVICE. Signed by Judge Charles R. Breyer on 5/6/2011. (Attachments: # 1 Certificate of Service)(be, COURT STAFF) (Filed on 5/9/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY DAWAYNE LEE TURNER,
Plaintiff(s),

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v.

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TOM GRAFF, et al.,

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Defendant(s).

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No. C 10-5709 CRB (PR)
ORDER OF SERVICE

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Plaintiff, a prisoner at the Sacramento County Jail, has filed a pro se

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complaint under 42 U.S.C. § 1983 alleging deprivations of his constitutional

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rights while he was at Napa State Hospital (NSH).
DISCUSSION

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

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United States was violated, and (2) that the alleged violation was committed by a

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person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48

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(1988).

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B.

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Legal Claims
Plaintiff alleges that in December 2008, while he was at NSH, Dr. David

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Brody refused to help plaintiff see a social worker to assist him with accessing

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the law library, legal materials and legal phone calls, and instead threatened to

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have plaintiff restrained if he kept asking for a social worker. Plaintiff continued

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to ask for a social worker and Dr. Brody called the NSH correctional officers.

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According to plaintiff, Dr. Brody, acting program director Tom Graff and

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correctional officer Bearer Lee (as well as three unidentified Doe defendants)

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proceeded to take plaintiff down and assaulted him "with the use of excessive

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force while face down on the floor." Docket # 1 at 27. Plaintiff was "kicked,

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punched, shot severely in the buttocks with psychotropic medication that his

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boxer shorts were soaked with blood." Id.

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Liberally construed, plaintiff's allegations of use of excessive force state a

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cognizable § 1983 claim for damages against defendants Brody, Graff and Lee

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and will be served on these defendants. See Hudson v. McMillian, 503 U.S. 1, 6-

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7 (1992) (prison officials may use force in a good-faith effort to maintain or

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restore discipline, but not maliciously and sadistically to cause harm); see also

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Hydrick v. Hunter, 500 F.3d 978, 997-98 (9th Cir. 2007) (to prevail on excessive

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force claim, civilly confined plaintiff must show use of force was excessive

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because it was not reasonably necessary to maintain or restore order and/or

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discipline), rev'd on other grounds, 129 S. Ct. 2431 (2009). But plaintiff cannot

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proceed against any of the Doe defendants unless he first identifies them and

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amends his complaint to name them as defendants. See Wakefield v. Thompson,

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177 F.3d 1160, 1163 (9th Cir. 1999) (plaintiff should be given opportunity to

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identify unknown defendants).1

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Plaintiff is advised that the instant action will be limited to his § 1983

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claim for damages for use of excessive force. Plaintiff's claims for injunctive

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relief will be dismissed as moot because it is well-established that when an

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inmate is transferred to another prison and, as is the case here, there is no

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reasonable expectation nor demonstrated probability that he will again be

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subjected to the conditions from which he seeks injunctive relief, the claims for

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injunctive relief should be dismissed as moot. See Dilley v. Gunn, 64 F.3d 1365,

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1368-69 (9th Cir. 1995).
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 complaint in this matter, all

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attachments thereto, and copies of this order on the following defendants at NSH:

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Dr. David Brody, acting program director Tom Graff and correctional officer

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Bearer Lee. 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, defendants

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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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Plaintiff will be afforded 30 days from the date of this order to identify
the Doe defendants and amend his complaint to add them.
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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 defendants are of the opinion that this case cannot be resolved by

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

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

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served promptly on plaintiff.

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b.

Plaintiff's opposition to the dispositive motion shall be filed

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

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serve plaintiff with the motion.

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c.

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

on which plaintiff serves them with the opposition.
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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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defendants, or defendants' counsel once counsel has been designated, by mailing

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a true copy of the document to defendants or defendants' 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 6, 2011
CHARLES R. BREYER
United States District Judge

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