Oliver v. Bassard

Filing 4

ORDER OF SERVICE. Signed by Judge William Alsup on 4/24/12. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 5/1/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 12-1344 WHA (PR)
Plaintiff,
For the Northern District of California

United States District Court

IVAN OLIVER,
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ORDER OF SERVICE

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v.
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JERED BASSARD,
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Defendant.
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/
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INTRODUCTION

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Plaintiff, an inmate at the Lake County Jail, filed this pro se civil rights action pursuant

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to 42 U.S.C. 1983. He has been granted leave to proceed in forma pauperis in a separate order.

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Based upon a review of the amended complaint, which supercedes the original complaint,

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pursuant to 28 U.S.C. 1915A, the Marshal is ordered to serve the complaint upon defendant.
ANALYSIS

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A.

STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro

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se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

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(9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the

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statement need only” give the “defendant fair notice of what the . . . . claim is and the grounds

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upon which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).

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Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

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plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than

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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do. . . . Factual allegations must be enough to raise a right to relief above the speculative

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For the Northern District of California

United States District Court

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level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

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complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id.

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at 1986-87.

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To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2)

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that the alleged deprivation was committed by a person acting under the color of state law.

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

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B.

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LEGAL CLAIMS
Plaintiff alleges that he was in an isolation cell covered in his own feces, when

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defendant, a sergeant at the Lake County Jail, ordered guards to extract plaintiff from the cell in

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order. Plaintiff alleges that he declined an offer to take a shower, and defendant ordered guards

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to place plaintiff in a restraint chair, place him in the shower, and scrub him with dirty toilet

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brushes partially covered in towels. Plaintiff’s allegations that defendant ordered guards to

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scrub him with dirty toilet brushes, when liberally construed, are sufficient to state a cognizable

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claim for the violation of his constitutional rights to be free from cruel and unusual punishment.

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CONCLUSION

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1. The clerk shall issue summons and the United States Marshal shall serve, without
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prepayment of fees, a copy of the complaint in this matter with all attachments thereto and a

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copy of this order upon defendants: Sergeant Jered Bassard at the Lake County Jail. A

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courtesy copy of the complaint with its attachments and this order shall also be mailed to the

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Lake County Counsel’s Office.

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2. In order to expedite the resolution of this case, the court orders as follows:
a. No later than ninety days from the date this order is filed, defendants shall file

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a motion for summary judgment or other dispositive motion. If defendants are of the opinion

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that this case cannot be resolved by summary judgment, they shall so inform the court prior to

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the date the summary judgment motion is due. All papers filed with the court shall be promptly

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For the Northern District of California

United States District Court

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served on the plaintiff.
b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the

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court and served upon defendants no later than thirty days from the date of service of the

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motion. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is

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provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc),

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and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

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If defendants file an unenumerated motion to dismiss claiming that plaintiff failed to

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exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff

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should take note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),”

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which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir.),

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cert. denied, Alameida v. Wyatt, 124 S.Ct 50 (2003).

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c. Defendants shall file a reply brief no later than fifteen days after the date of
service of the opposition.
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.
4. All communications by the plaintiff with the court must be served on defendant, or

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defendant’s counsel once counsel has been designated, by mailing a true copy of the document

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to defendant or defendant’s counsel.

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5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

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No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is

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required before the parties may conduct discovery.

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6. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address and must comply with the court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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Dated: April

24 , 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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G:\PRO-SE\WHA\CR.12\OLIVER1344.SRV.wpd

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case

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dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil

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Procedure will, if granted, end your case.

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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,

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the party who asked for summary judgment is entitled to judgment as a matter of law, which

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will end your case. 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 rely on what

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For the Northern District of California

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

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United States District Court

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your complaint says. Instead, you must set out specific facts in declarations, depositions,

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answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that

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contradict the facts shown in the defendant's declarations and documents and show that there is

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a genuine issue of material fact for trial. If you do not submit your own evidence in opposition,

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summary 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.

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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

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did exhaust your administrative remedies. Such evidence may be in the form of declarations

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(statements signed under penalty of perjury) or authenticated documents, that is, documents

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accompanied by a declaration showing where they came from and why they are authentic, or

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other sworn papers, such as answers to interrogatories or depositions.

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If defendants file a motion to dismiss and it is granted, your case will be dismissed and
there will be no trial.

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