Ray v. Hedgepath et al
Filing
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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 6/4/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PAUL E. RAY, P46442,
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Plaintiff(s),
v.
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A. HEDGPETH, Warden, et al.,
Defendant(s).
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No. C 12-0032 CRB (PR)
ORDER OF SERVICE
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Plaintiff, a prisoner at Salinas Valley State Prison (SVSP), has filed a pro
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se complaint under 42 U.S.C. § 1983 alleging inadequate medical care for a
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ruptured bicep tendon. Plaintiff specifically alleges that he has been improperly
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denied repair surgery initially recommended by a prison doctor.
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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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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.
Legal Claims
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Deliberate indifference to serious medical needs violates the Eighth
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Amendment's proscription against cruel and unusual punishment. See Estelle v.
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Gamble, 429 U.S. 97, 104 (1976). Such indifference may appear when prison
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officials deny, delay or intentionally interfere with medical treatment, or it may
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be shown in the way in which prison officials provide medical care. See
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McGuckin v. Smith, 974 F.2d 1050, 1062 (9th Cir. 1992) (delay of seven months
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in providing medical care during which medical condition was left virtually
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untreated and plaintiff was forced to endure "unnecessary pain" sufficient to
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present colorable § 1983 claim), overruled on other grounds, WMX
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Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
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Liberally construed, plaintiff's allegations that doctors Pompan and M.
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Sepulveda have provided him with inadequate medical care for a ruptured bicep
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tendon present a colorable § 1983 claim for deliberate indifference to serious
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medical needs and will be served on these two defendants. But SVSP Warden A.
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Hedgpeth is dismissed because he is named on the theory that he is liable for the
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actions of his subordinates and it is well established that there is no § 1983
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liability under such a theory, i.e., a theory of respondeat superior liability. See
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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (under no circumstances is
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there liability under § 1983 solely because one is responsible for the actions or
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omissions of another).
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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
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SVSP: Doctor Pompan and Doctor M. Sepulveda. (Warden A. Hedgpeth is
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dismissed.) 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
a.
No later than 90 days from the date of this order, defendants
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shall serve and file a motion for summary judgment or other dispositive motion.
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A motion for summary judgment shall be supported by adequate factual
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documentation and shall conform in all respects to Federal Rule of Civil
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Procedure 56, and shall include as exhibits all records and incident reports
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stemming from the events at issue. If defendants are of the opinion that this case
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cannot be 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. All papers filed with the
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court shall be served promptly on plaintiff.
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b.
Plaintiff must serve and file an opposition or statement of
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non-opposition to the dispositive motion not more than 28 days after the motion
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is served and filed.
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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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d.
Defendants must serve and file a reply to an opposition not
more than 14 days after the opposition is served and filed.
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e.
The motion shall be deemed submitted as of the date the
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reply is due. No hearing will be held on the motion unless the court so orders at a
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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:
June 1, 2012
CHARLES R. BREYER
United States District Judge
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G:\PRO-SE\CRB\CR.12\Ray, P.12-0032.serve.wpd
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