Lopez v. Nares et al

Filing 11

ORDER OF SERVICE. Signed by Judge Thelton E. Henderson on 10/5/2011. (Attachments: # 1 Certificate of Service)(tmi, COURT STAFF) (Filed on 10/6/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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Plaintiff,

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No. C-10-5799 TEH (PR)

ARTHUR LOPEZ,

ORDER OF SERVICE

v.
LUZ F. NARES, et. al.,

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Defendants.

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/

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Plaintiff, a former California state prisoner, filed this

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pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging

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that several correctional officers at California Training Facility-

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North (“CTF”) in Soledad, California, were deliberately indifferent

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to his serious medical needs while he was imprisoned at that

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facility.

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pursuant to 28 U.S.C. § 1915A.

The action is now before the Court for initial screening

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Federal courts must engage in a preliminary screening of
cases in which prisoners seek redress from a governmental entity or

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officer or employee of a governmental entity.

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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,

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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

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from such relief.”

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litigants, however, must be liberally construed.

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627 F.3d 338, 342 (9th Cir. 2010); Balistreri v. Pacifica Police

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Dep’t., 901 F.2d 696, 699 (9th Cir. 1990).

Id. § 1915A(b).

28 U.S.C. § 1915A(a).

Pleadings filed by pro se
Hebbe v. Pliler,

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II

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

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allege two essential elements:

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Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the

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color of state law.

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(1) that a right secured by the

West v. Atkins, 487 U.S. 42, 48 (1988).

Deliberate indifference to a prisoner’s serious medical

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needs violates the Eighth Amendment’s proscription against cruel and

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unusual punishment.

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“Dental care is one of the most important medical needs” of

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prisoners.

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1989) (citation omitted).

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indifference” to a prisoner’s serious medical needs involves an

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examination of two elements:

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medical need and the nature of the defendant’s response to that

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need.

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

See Hunt v. Dental Dep’t., 865 F.2d 198, 200 (9th Cir.
A determination of “deliberate

the seriousness of the prisoner’s

See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).

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A “serious medical need” exists if the failure to treat a

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prisoner’s condition could result in further significant injury or

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the “unnecessary and wanton infliction of pain.”

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at 1059 (citing Estelle, 429 U.S. at 104), overruled in part on

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other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133,

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1136 (9th Cir. 1997) (en banc).

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reasonable doctor or patient would find important and worthy of

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comment or treatment, the presence of a medical condition that

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significantly affects an individual’s daily activities, or the

McGuckin, 974 F.2d

The existence of an injury that a

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existence of chronic and substantial pain are examples of

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indications that a prisoner has a “serious” need for medical

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treatment.

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Housewright, 900 F.2d 1332, 1337–41 (9th Cir. 1990)).

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McGuckin, 974 F.2d at 1059–60 (citing Wood v.

A prison official is “deliberately indifferent” if he

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knows that a prisoner faces a substantial risk of serious harm and

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disregards that risk by failing to take reasonable steps to abate

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it.

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negligence, however, is insufficient to make out a violation of the

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Eighth Amendment.

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Cir. 2004); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002);

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Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); see, e.g.,

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Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (finding no

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merit in claims stemming from alleged delays in administering pain

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medication, treating broken nose and providing replacement crutch,

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because claims did not amount to more than negligence); McGuckin,

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974 F.2d at 1059 (mere negligence in diagnosing or treating a

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

See Toguchi v. Chung, 391 F.3d 1051, 1060–61 (9th

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A claim of

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medical condition, without more, does not violate a prisoner’s

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Eighth Amendment rights); O’Loughlin v. Doe, 920 F.2d 614, 617 (9th

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Cir. 1990) (repeatedly failing to satisfy requests for aspirins and

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antacids to alleviate headaches, nausea and pains is not

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constitutional violation; isolated occurrences of neglect may

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constitute grounds for medical malpractice but do not rise to level

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of unnecessary and wanton infliction of pain); Anthony v. Dowdle,

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853 F.2d 741, 743 (9th Cir. 1988) (no more than negligence stated

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where prison warden and work supervisor failed to provide prompt and

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sufficient medical care).

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ignored the instructions of a prisoner's treating physician is

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sufficient to state a claim, however.

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177 F.3d 1160, 1165 & n.6 (9th Cir. 1999).

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A contention that a correctional officer

See Wakefield v. Thompson,

Liberally construed, Plaintiff’s allegations of deliberate

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indifference to his serious medical needs appear to state a

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cognizable 42 U.S.C. § 1983 claim and the Defendants named below

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will be served.

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II

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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

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Marshal shall serve, without prepayment of fees, copies of the

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Complaint in this matter, all attachments thereto, and copies of

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this Order on the following CTF employees:

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Nares; (2) CTF Chief Dental Officer K. B. Sather; (3) CTF Acting

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Chief Medical Officer S. Martinez; (4) CTF Supervising D.D.S. J.

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(1) CTF Dentist Luz F.

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Novial and (5) Califoria Prison Health Care Services Chief of Third

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Level Health Care Appeals J. Walker.

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copy of this Order on Plaintiff.

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2.

The Clerk also shall serve a

To expedite the resolution of this case, the Court

orders as follows:

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a.

No later than ninety (90) days from the date of

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this Order, Defendants shall file a motion for summary judgment or

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other dispositive motion.

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supported by adequate factual documentation and shall conform in all

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respects to Federal Rule of Civil Procedure 56, and shall include as

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exhibits all records and incident reports stemming from the events

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at issue.

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resolved by summary judgment or other dispositive motion, they shall

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so inform the Court prior to the date their motion is due.

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papers filed with the Court shall be served promptly on Plaintiff.

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A motion for summary judgment shall be

If Defendants are of the opinion that this case cannot be

b.

All

Plaintiff’s opposition to the dispositive motion

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shall be filed with the Court and served upon Defendants no later

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than thirty (30) days after Defendants serve Plaintiff with the

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motion.

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c.

Plaintiff is advised that a motion for summary

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judgment under Rule 56 of the Federal Rules of Civil Procedure will,

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if granted, end your case.

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order to oppose a motion for summary judgment.

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judgment must be granted when there is no genuine issue of material

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fact - that is, if there is no real dispute about any fact that

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

Rule 56 tells you what you must do in

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Generally, summary

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summary judgment is entitled to judgment as a matter of law, which

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will end your case.

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summary judgment that is properly supported by declarations (or

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other sworn testimony), you cannot simply rely on what your

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complaint says.

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declarations, depositions, answers to interrogatories, or

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authenticated documents, as provided in Rule 56(e), that contradicts

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the facts shown in the Defendants’ declarations and documents and

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show that there is a genuine issue of material fact for trial.

When a party you are suing makes a motion for

Instead, you must set out specific facts in

If

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you do not submit your own evidence in opposition, summary judgment,

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if appropriate, may be entered against you.

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granted, your case will be dismissed and there will be no trial.

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Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc)

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(App. A).

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If summary judgment is

Plaintiff also is advised that a motion to dismiss for

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failure to exhaust administrative remedies under 42 U.S.C. §

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1997e(a) will, if granted, end your case, albeit without prejudice.

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You must “develop a record” and present it in your opposition in

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order to dispute any “factual record” presented by the Defendants in

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their motion to dismiss.

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(9th Cir. 2003).

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d.

Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14

Defendants shall file a reply brief within

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fifteen (15) days of the date on which Plaintiff serves them with

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the opposition.

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e.

The motion shall be deemed submitted as of the

date the reply brief is due.

No hearing will be held on the motion

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unless the Court so orders at a later date.

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3.

Discovery may be taken in accordance with the Federal

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Rules of Civil Procedure.

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the parties may conduct discovery.

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4.

No further Court order is required before

All communications by Plaintiff with the Court must

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be served on Defendants, or Defendants’ counsel once counsel has

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been designated, by mailing a true copy of the document to

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Defendants or Defendants’ counsel.

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5.

It is Plaintiff’s responsibility to prosecute this

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case.

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change of address and must comply with the Court’s orders in a

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timely fashion.

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

Plaintiff must keep the Court and all parties informed of any

Failure to do so may result in the dismissal of

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IT IS SO ORDERED.
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DATED

10/05/2011
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\CR.10\Lopez-10-5799-order of service.wpd

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