Hoeper v. City & County of San Francisco Department of Public Health Jail Health Services et al

Filing 9

ORDER OF SERVICE. Signed by Judge Thelton E. Henderson on 10/05/2011. (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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No. C-11-0683 TEH (PR)

LESLIE RICHARD HOEPER,
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United States District Court
For the Northern District of California

Plaintiff,
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ORDER OF SERVICE

v.
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CITY AND COUNTY OF SAN FRANCISCO,
et. al.,
Defendant(s).
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Plaintiff, a former pretrial detainee at the San Francisco

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County Jail at 850 Bryant Street in San Francisco, filed this pro se

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civil rights action pursuant to 42 U.S.C. § 1983 alleging that San

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Francisco County Jail medical staffer Romelo Adeo was deliberately

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indifferent to Plaintiff’s serious medical needs while he was jailed

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at that facility.

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Plaintiff 160 milligrams of methadone and that as a result,

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Plaintiff, who claims he never had taken this medication previously,

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was transferred to San Francisco General Hospital and treated for an

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overdose.

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initial screening pursuant to 28 U.S.C. § 1915A.

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Specifically, Plaintiff alleges that Adeo gave

Doc. #1 at 2.

The action is now before the Court for

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Federal courts must engage in a preliminary screening of

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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.”

Id. § 1915A(b).

28 U.S.C. § 1915A(a).

Pleadings filed by pro se

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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).

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 serious medical needs violates

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the Eighth Amendment’s proscription against cruel and unusual

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punishment.1

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determination of “deliberate indifference” to a prisoner’s serious

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

A

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At the time he initiated this action, Plaintiff was awaiting
trial in the San Francisco County Jail. As a pretrial detainee, his
medical claim arises under the Due Process Clause, but the Eighth
Amendment still serves as a benchmark for evaluating the claim. See
Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (Eighth Amendment
guarantees provide minimum standard of care for pretrial detainees).
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medical needs involves an examination of two elements:

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seriousness of the prisoner’s medical need and the nature of the

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defendant’s response to that need.

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1050, 1059 (9th Cir. 1992).

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the

See McGuckin v. Smith, 974 F.2d

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,

McGuckin, 974 F.2d

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

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indifferent” if he knows that a prisoner faces a substantial risk of

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serious harm and disregards that risk by failing to take reasonable

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steps to abate it.

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A prison official is “deliberately

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

A pretrial detainee establishes a violation of the right

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to personal security protected by the Due Process Clause of the

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Fourteenth Amendment by demonstrating that prison officials acted

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with deliberate indifference.

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F.2d 1435, 1443 (9th Cir. 1991) (en banc).

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with deliberate indifference only if he knows of and disregards an

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excessive risk to prisoner health or safety.

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837.

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inference could be drawn that a substantial risk of serious harm

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exists, and he also must draw the inference.

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sufficient to impose liability under 42 U.S.C. § 1983.

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Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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official’s conduct must have been “wanton,” which turns not upon its

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effect on the prisoner, but rather, upon the constraints facing the

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Redman v. County of San Diego, 942
A prison official acts

Farmer, 511 U.S. at

The official must both be aware of facts from which the

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Id.

Negligence is not
Id. at 835;
Rather, the

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official.

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(1991)).

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Id. (citing Wilson v. Seiter, 501 U.S. 294, 302-03

Liberally construed, Plaintiff’s allegations that medical

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staffer Romelo Adeo was deliberately indifferent to Plaintiff’s

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serious medical needs appear to state a cognizable 42 U.S.C. § 1983

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claim and Adeo will be served.

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Named Defendant “City and County Department of Public

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Health Jail Services” is hereby DISMISSED without prejudice due to

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Plaintiff’s failure to allege sufficient facts to show that some

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official policy or custom caused a constitutional tort, see Monell

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v. Dep’t. of Social Servs., 436 U.S. 658, 690 (1978); see also Board

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of Cty. Comm’rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997);

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Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522,

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1534 (9th Cir. 1995) (city or county may not be held vicariously

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liable for the unconstitutional acts of its employees under the

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theory of respondeat superior); Plumeau v. School Dist. #40 County

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of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (to impose municipal

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liability under 42 U.S.C. § 1983 for a violation of constitutional

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rights, plaintiff must show: (1) that plaintiff possessed a

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constitutional right of which he or she was deprived; (2) that the

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municipality had a policy; (3) that this policy amounts to

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deliberate indifference to the plaintiff's constitutional rights;

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and (4) that the policy is the moving force behind the

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constitutional violation).

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//

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III

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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 San Francisco County Jail (850 Bryant Street, San

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Francisco) Medical Staffer Romelo Adeo.

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a copy of this Order on Plaintiff.

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2.

The Clerk also shall serve

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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Rule 56 tells you what you must do in
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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

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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.

Generally, summary

When a party you are suing makes a motion for

Instead, you must set out specific facts in

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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.

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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

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

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

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date the reply brief is due.

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unless the Court so orders at a later date.

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3.

No hearing will be held on the motion

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

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.11\Hoeper-11-0683-order of service.wpd

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