Shell v. Lewis

Filing 16

ORDER OF SERVICE Dispositive Motion due by 9/4/2012.. Signed by Judge Charles R. Breyer on 6/1/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 6/5/2012)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
11

LIONEL L. SHELL, G-13733,
Plaintiff(s),

12
v.

13
14

G. LEWIS, Warden, et al.,

15

Defendant(s).

)
)
)
)
)
)
)
)
)
)

No. C 11-2675 CRB (PR)
ORDER OF SERVICE

16
17

Plaintiff, an African-American prisoner at Pelican Bay State Prison

18

(PBSP), has filed a pro se First Amended Complaint (FAC) for damages under 42

19

U.S.C. § 1983 alleging that he was stabbed by white inmates after prison officials

20

released him to the Facility B main exercise yard. Plaintiff claims that warden G.

21

Lewis, correctional captain R. Bell and correctional officer John Doe were

22

deliberately indifferent to his safety because they knew (or should have known)

23

that white inmates were attacking African-American inmates.

24
25
26

DISCUSSION
A.

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

27

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

28

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

1

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

2

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

3

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

4

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

5

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

6
7

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

8

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

9

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

10

(1988).

11

B.

Legal Claims
The Eighth Amendment requires that prison officials take reasonable

12
13

measures to guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825,

14

832 (1994). In particular, prison officials have a duty to protect prisoners from

15

violence at the hands of other prisoners. Id. at 833; Hearns v. Terhune, 413 F.3d

16

1036, 1040 (9th Cir. 2005). The failure of prison officials to protect inmates

17

from attacks by other inmates or from dangerous conditions at the prison violates

18

the Eighth Amendment when two requirements are met: (1) the deprivation

19

alleged is, objectively, sufficiently serious; and (2) the prison official is,

20

subjectively, deliberately indifferent to inmate safety. Farmer, 511 U.S. at 834;

21

Hearns, 413 F.3d at 1040-41.

22

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

23

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

24

reasonable steps to abate it. Farmer, 511 U.S. at 837. Neither negligence nor

25

gross negligence constitute deliberate indifference. See id. at 835-36 & n.4.

26

/

27
28

2

1

Liberally construed, plaintiff's allegations that PBSP officials released him

2

to the Facility B main exercise yard despite knowing that white inmates were

3

attacking African-American inmates, and that he was stabbed by white inmates,

4

state a cognizable § 1983 claim for deliberate indifference to safety needs and

5

will be served on the named defendants. See Hearns, 413 F.3d at 1041-42

6

(allegations in pro se complaint sufficient to raise inference that named prison

7

officials acted with deliberate indifference – i.e, that they knew that plaintiff

8

faced a substantial risk of serious harm and disregarded that risk by failing to take

9

reasonable measures to abate it – state a failure-to-protect claim).1
CONCLUSION

10
11

For the foregoing reasons and for good cause shown,

12

1.

The clerk shall issue summons and the United States Marshal shall

13

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

14

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

15

PBSP: warden G. Lewis and correctional captain R. Bell . The clerk also shall

16

serve a copy of this order on plaintiff.

17

2.

18

follows:

19

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

a.

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

20

shall serve and file a motion for summary judgment or other dispositive motion.

21

A motion for summary judgment shall be supported by adequate factual

22

documentation and shall conform in all respects to Federal Rule of Civil

23
24

1

27

Plaintiff cannot proceed against a Doe defendant unless he first identifies
the Doe defendant and amends his complaint to add him as a named defendant.
Plaintiff will be afforded 60 days from the date of this order to do so. See
Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (plaintiff should be
given opportunity to identify unknown defendants).

28

3

25
26

1

Procedure 56, and shall include as exhibits all records and incident reports

2

stemming from the events at issue. If defendants are of the opinion that this case

3

cannot be resolved by summary judgment or other dispositive motion, they shall

4

so inform the court prior to the date their motion is due. All papers filed with the

5

court shall be served promptly on plaintiff.

6

b.

Plaintiff must serve and file an opposition or statement of

7

non-opposition to the dispositive motion not more than 28 days after the motion

8

is served and filed.

9

c.

Plaintiff is advised that a motion for summary judgment

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App A).

26

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

27
28

4

1

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

2

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

3

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

4

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

5

n.14 (9th Cir. 2003).
d.

6
7

more than 14 days after the opposition is served and filed.
e.

8
9
10
11

Defendants must serve and file a reply to an opposition not

The motion shall be deemed submitted as of the date the

reply is due. No hearing will be held on the motion unless the court so orders at a
later date.
3.

Discovery may be taken in accordance with the Federal Rules of

12

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

13

conduct discovery.

14

4.

All communications by plaintiff with the court must be served on

15

defendants, or defendants' counsel once counsel has been designated, by mailing

16

a true copy of the document to defendants or defendants' counsel.

17

5.

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

18

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

19

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

20

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

21

SO ORDERED.

22

DATED: June 1, 2012
CHARLES R. BREYER
United States District Judge

23
24
25
26

G:\PRO-SE\CRB\CR.11\Shell, L.11-2675.serve.wpd

27
28

5