Lua v. Adams

Filing 9

ORDER OF SERVICE Dispositive Motion due by 10/11/2012.. Signed by Judge Charles R. Breyer on 7/12/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 7/13/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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HUGO LUA, P-48040,
Plaintiff(s),

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v.

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NANCY ADAMS, M.D.,
Defendant(s).

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No. C 12-1793 CRB (PR)
ORDER OF SERVICE

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Plaintiff, a prisoner at Pelican Bay State Prison (PBSP), has filed a pro se

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complaint under 42 U.S.C. § 1983 alleging improper medical care for severe

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nerve pain. Plaintiff specifically alleges that Dr. Nancy Adams improperly

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discontinued his long-term pain medication despite his protests and medical

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history of severe nerve pain due to multiple herniated spinal discs.
DISCUSSION

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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 Dr. Nancy Adams

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discontinued his long-term pain medication despite his protests and medical

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history of severe nerve pain due to multiple herniated spinal discs present an

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arguably cognizable § 1983 claim for deliberate indifference to serious medical

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needs and will be served on Dr. Nancy Adams. See id.

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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 Dr. Nancy Adams at PBSP. The

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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

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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 must be supported by adequate factual

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

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

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stemming from the events at issue. A motion for summary judgment also must

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be accompanied by a Rand notice so that plaintiff will have fair, timely and

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adequate notice of what is required of him in order to oppose the motion. Woods

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v. Carey, Nos. 09-15548 & 09-16113, slip op. 7871, 7874 (9th Cir. July 6, 2012)

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(notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998),

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must be served concurrently with motion for summary judgment). A motion to

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dismiss for failure to exhaust available administrative remedies similarly must be

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accompanied by a Wyatt notice. Id. (notice requirement set out in Wyatt v.

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Terhune, 315 F.3d 1108 (9th Cir. 2003), must be served concurrently with motion

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to dismiss for failure to exhaust available administrative remedies).

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If defendants are of the opinion that this case cannot be resolved by

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summary judgment or other dispositive motion, they shall so inform the court

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prior to the date their motion is due. All papers filed with the court shall be

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

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

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end your case, albeit without prejudice. You must "develop a record" and present

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it in 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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(The Rand and Wyatt notices above do not excuse defendants' obligation

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to serve said notices again concurrently with motions to dismiss for failure to

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exhaust available administrative remedies and motions for summary judgment.

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Woods, slip op. at 7874.)

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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:

July 12, 2012
CHARLES R. BREYER
United States District Judge

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