Reyes v. Grounds et al

Filing 8

ORDER OF SERVICE; DENYING MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR A TRO AND PRELIMINARY INJUNCTION. Motions terminated: 7 MOTION to Appoint Counsel filed by Carlos Jaimez Reyes, 4 MOTION for Temporary Restraining Order filed by Carlos Jaimez Reyes. Signed by Judge William Alsup on 418/2012. (Attachments: # 1 Certificate/Proof of Service)(kns, COURT STAFF) (Filed on 4/19/2012) Modified on 4/19/2012 (kns, COURT STAFF).

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 No. C 12-0704 WHA (PR) ORDER OF SERVICE; DENYING MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR A TRO AND PRELIMINARY INJUNCTION Plaintiff, For the Northern District of California United States District Court CARLOS REYES, 11 12 v. 13 14 R. GROUNDS; G.ELLIS; M. SEPULVEDA; L. LUZADA; L. FERNANDEZ; Z. AHMED; 15 (Docket Nos. 4 & 7) Defendants. 16 / 17 18 INTRODUCTION 19 Plaintiff, an inmate at California State Prison, Soledad, filed this pro se civil rights 20 action pursuant to 42 U.S.C. 1983. He has been granted leave to proceed in forma pauperis in a 21 separate order. Based upon a review of the amended complaint, which supercedes the original 22 complaint, pursuant to 28 U.S.C. 1915A, the Marshal is ordered to serve the complaint upon 23 defendants. ANALYSIS 24 25 A. STANDARD OF REVIEW 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 1 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 2 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro 3 se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 4 (9th Cir. 1990). 5 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 6 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 7 statement need only” give the “defendant fair notice of what the . . . . claim is and the grounds 8 upon which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). 9 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than 11 For the Northern District of California United States District Court 10 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 12 do. . . . Factual allegations must be enough to raise a right to relief above the speculative 13 level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A 14 complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. 15 at 1986-87. 16 To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements: 17 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) 18 that the alleged deprivation was committed by a person acting under the color of state law. 19 West v. Atkins, 487 U.S. 42, 48 (1988). 20 B. LEGAL CLAIMS Plaintiff alleges that defendants failed to provide adequate medical care for his left hand, 21 22 including surgery follow-up care, physical therapy, and medication, which led to additional 23 pain, numbness, and lack of mobility. When liberally construed, the allegations state a 24 cognizable claim that defendants were deliberately indifferent to his serious medical needs, in 25 violation of the Eighth Amendment. 26 C. 27 28 Motions Plaintiff has filed a motion for appointment of counsel. There is no constitutional right 2 1 to counsel in a civil case. Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981). 28 2 U.S.C. § 1915 confers on a district court only the power to "request" that counsel represent a 3 litigant who is proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1). Plaintiff is capable of 4 presenting his claims effectively, and the issues, at least at this stage, are not complex. The 5 motion (docket number 7) is DENIED. 6 Plaintiff has also filed a motion for a preliminary injunction and a temporary restraining required. See Fed. R. Civ. P. 65(a)(1). A TRO may be granted without written or oral notice to 9 the adverse party or that party's attorney only if: (1) it clearly appears from specific facts shown 10 by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage 11 For the Northern District of California order (“TRO”). Prior to granting a preliminary injunction, notice to the adverse party is 8 United States District Court 7 will result to the applicant before the adverse party or the party's attorney can be heard in 12 opposition, and (2) the applicant's attorney certifies in writing the efforts, if any, which have 13 been made to give notice and the reasons supporting the claim that notice should not be 14 required. See Fed. R. Civ. P. 65(b). Plaintiff has neither notified the defendants of his request 15 nor submitted the required certification of his efforts to do so and why they have failed. 16 Accordingly, the motion for a TRO or preliminary injunction (docket number 4) is also 17 DENIED. 18 19 20 21 CONCLUSION 1. The motions for appointment of counsel and for a TRO and preliminary injunction are DENIED. 2. The clerk shall issue summons and the United States Marshal shall serve, 22 without prepayment of fees, a copy of the complaint in this matter with all attachments thereto 23 and a copy of this order upon defendants: R. Grounds; G. Ellis; M. Sepulveda; L. Luzada; L. 24 Fernandez; and Z. Ahmed at the California State Prison in Soledad. A courtesy copy of the 25 complaint with its attachments and this order shall also be mailed to the California Attorney 26 General’s Office. 27 28 2. In order to expedite the resolution of this case, the court orders as follows: 3 1 a. No later than ninety days from the date this order is filed, defendants shall file 2 a motion for summary judgment or other dispositive motion. If defendants are of the opinion 3 that this case cannot be resolved by summary judgment, they shall so inform the court prior to 4 the date the summary judgment motion is due. All papers filed with the court shall be promptly 5 served on the plaintiff. 6 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 7 court and served upon defendants no later than thirty days from the date of service of the 8 motion. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is 9 provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 11 For the Northern District of California United States District Court 10 If defendants file an unenumerated motion to dismiss claiming that plaintiff failed to 12 exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff 13 should take note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” 14 which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir.), 15 cert. denied, Alameida v. Wyatt, 124 S.Ct 50 (2003). 16 17 c. Defendants shall file a reply brief no later than fifteen days after the date of service of the opposition. 18 19 d. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the court so orders at a later date. 20 4. All communications by the plaintiff with the court must be served on defendant, or 21 defendant’s counsel once counsel has been designated, by mailing a true copy of the document 22 to defendant or defendant’s counsel. 23 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 24 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is 25 required before the parties may conduct discovery. 26 // 27 // 28 4 1 6. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 2 informed of any change of address and must comply with the court's orders in a timely fashion. 3 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 4 Federal Rule of Civil Procedure 41(b). 5 IT IS SO ORDERED. 6 Dated: April 18, 2012. 7 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 G:\PRO-SE\WHA\CR.12\REYES0704.SRV.wpd 23 24 25 26 27 28 5 1 NOTICE -- WARNING 2 (SUMMARY JUDGMENT) 3 If defendants move for summary judgment, they are seeking to have your case 4 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 5 Procedure will, if granted, end your case. 6 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. fact--that is, if there is no real dispute about any fact that would affect the result of your case, 9 the party who asked for summary judgment is entitled to judgment as a matter of law, which 10 will end your case. When a party you are suing makes a motion for summary judgment that is 11 For the Northern District of California Generally, summary judgment must be granted when there is no genuine issue of material 8 United States District Court 7 properly supported by declarations (or other sworn testimony), you cannot simply rely on what 12 your complaint says. Instead, you must set out specific facts in declarations, depositions, 13 answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that 14 contradict the facts shown in the defendant's declarations and documents and show that there is 15 a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, 16 summary judgment, if appropriate, may be entered against you. If summary judgment is 17 granted, your case will be dismissed and there will be no trial. 18 19 20 21 NOTICE -- WARNING (EXHAUSTION) If defendants file an unenumerated motion to dismiss for failure to exhaust, they are seeking to have your case dismissed. If the motion is granted it will end your case. You have the right to present any evidence you may have which tends to show that you 22 did exhaust your administrative remedies. Such evidence may be in the form of declarations 23 (statements signed under penalty of perjury) or authenticated documents, that is, documents 24 accompanied by a declaration showing where they came from and why they are authentic, or 25 other sworn papers, such as answers to interrogatories or depositions. 26 27 28 If defendants file a motion to dismiss and it is granted, your case will be dismissed and there will be no trial. 6

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