Garza v. Hedgpeth et al

Filing 9

ORDER OF SERVICE Dispositive Motion due by 5/6/2013.. Signed by Judge Charles R. Breyer on 2/1/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 2/4/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 EDWARD GARZA, B-96513, Plaintiff(s), 12 v. 13 14 ANTHONY HEDGPETH, et al., 15 Defendant(s). ) ) ) ) ) ) ) ) ) ) No. C 12-3354 CRB (PR) ORDER OF SERVICE 16 17 Plaintiff, a prisoner at Salinas Valley State Prison (SVSP), has filed a pro 18 se complaint under 42 U.S.C. § 1983 alleging that he was subjected to excessive 19 force when correctional officers responded to his being attacked by another 20 inmate by pepper spraying him while he was on the floor and by dragging him to 21 a holding cage by his mechanical restraints. Plaintiff further alleges that he was 22 denied prompt medical care and that defendants conspired to falsify reports of 23 what transpired and charge him with battery on another inmate with a weapon. 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 12 Prison officials violated the Eighth Amendment if they apply force 13 maliciously and sadistically to cause harm. See Hudson v. McMillian, 503 U.S. 14 1, 6-7 (1992). Liberally construed, plaintiff's allegations that he was pepper 15 sprayed while he was on the floor and dragged to a holding cage by his 16 mechanical restraints appear to state a cognizable claim under § 1983 for use of 17 excessive force and will be served on the corresponding defendants. So will 18 plaintiff's allegations that he was denied prompt medical care. See Estelle v. 19 Gamble, 429 U.S. 97, 104 (1976) (deliberate indifference to serious medical 20 needs violates 8th Amendment). 21 Plaintiff's allegations that defendants conspired to falsify reports of what 22 transpired and charge him with battery on another inmate with a weapon are 23 dismissed for failure to state a claim under § 1983 because it is well-established 24 that a prisoner has no constitutionally guaranteed immunity from being falsely or 25 wrongly accused of conduct which may result in the deprivation of a protected 26 liberty interest. See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); 27 28 2 1 Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); see also Hanrahan v. 2 Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984) (as long as prisoner is afforded 3 procedural due process in disciplinary hearing, allegations of fabricated charge 4 fail to state a claim under § 1983). Plaintiff's invocation of a conspiracy makes 5 no difference because a conspiracy is not itself a constitutional tort under § 1983. 6 See Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012) (en banc) 7 (conspiracy does not enlarge nature of claims asserted by plaintiff, as there must 8 always be an underlying constitutional violation).1 CONCLUSION 9 10 For the foregoing reasons and for good cause shown, 11 1. The clerk shall issue summons and the United States Marshal shall 12 serve, without prepayment of fees, copies of the complaint in this matter, all 13 attachments thereto, and copies of this order on the named defendants at SVSP. 14 The clerk also shall serve a copy of this order on plaintiff. 15 2. 16 follows: 17 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 18 shall serve and file a motion for summary judgment or other dispositive motion. 19 A motion for summary judgment must be supported by adequate factual 20 documentation and must conform in all respects to Federal Rule of Civil 21 Procedure 56, and must include as exhibits all records and incident reports 22 stemming from the events at issue. A motion for summary judgment also must 23 be accompanied by a Rand notice so that plaintiff will have fair, timely and 24 adequate notice of what is required of him in order to oppose the motion. Woods 25 1 27 Nor does plaintiff state a claim against a state or private conspiracy under 42 U.S.C. § 1985(3). See Butler v. Elle, 281 F.3d 1014, 1028 (9th Cir. 2002) (claim under § 1985(3) requires showing of racial class discrimination). 28 3 26 1 v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand 2 v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with 3 motion for summary judgment). A motion to dismiss for failure to exhaust 4 available administrative remedies must be accompanied by a similar notice. 5 Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 6 (notice requirement set out in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), 7 must be served concurrently with motion to dismiss for failure to exhaust 8 available administrative remedies). 9 If defendants are of the opinion that this case cannot be resolved by 10 summary judgment or other dispositive motion, they shall so inform the court 11 prior to the date their motion is due. All papers filed with the court shall be 12 served promptly on plaintiff. 13 b. Plaintiff must serve and file an opposition or statement of 14 non-opposition to the dispositive motion not more than 28 days after the motion 15 is served and filed. 16 c. Plaintiff is advised that a motion for summary judgment 17 under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your 18 case. Rule 56 tells you what you must do in order to oppose a motion for 19 summary judgment. Generally, summary judgment must be granted when there 20 is no genuine issue of material fact – that is, if there is no real dispute about any 21 fact that would affect the result of your case, the party who asked for summary 22 judgment is entitled to judgment as a matter of law, which will end your case. 23 When a party you are suing makes a motion for summary judgment that is 24 properly supported by declarations (or other sworn testimony), you cannot simply 25 rely on what your complaint says. Instead, you must set out specific facts in 26 declarations, depositions, answers to interrogatories, or authenticated documents, 27 28 4 1 as provided in Rule 56(e), that contradicts the facts shown in the defendant's 2 declarations and documents and show that there is a genuine issue of material 3 fact for trial. If you do not submit your own evidence in opposition, summary 4 judgment, if appropriate, may be entered against you. If summary judgment is 5 granted, your case will be dismissed and there will be no trial. Rand v. Rowland, 6 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A). 7 Plaintiff also is advised that a motion to dismiss for failure to exhaust 8 available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, 9 end your case, albeit without prejudice. You must "develop a record" and present 10 it in your opposition in order to dispute any "factual record" presented by the 11 defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1120 12 n.14 (9th Cir. 2003). You have the right to present any evidence to show that you 13 did exhaust your available administrative remedies before coming to federal 14 court. Such evidence may include: (1) declarations, which are statements signed 15 under penalty of perjury by you or others who have personal knowledge of 16 relevant matters; (2) authenticated documents – documents accompanied by a 17 declaration showing where they came from and why they are authentic, or other 18 sworn papers such as answers to interrogatories or depositions; (3) statements in 19 your complaint insofar as they were made under penalty of perjury and they show 20 that you have personal knowledge of the matters state therein. In considering a 21 motion to dismiss for failure to exhaust, the court can decide disputed issues of 22 fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09. 23 (The Rand and Wyatt/Stratton notices above do not excuse defendants' 24 obligation to serve said notices again concurrently with motions to dismiss for 25 failure to exhaust available administrative remedies and motions for summary 26 judgment. Woods, 684 F.3d at 935.) 27 28 5 1 2 d. Defendants must serve and file a reply to an opposition not more than 14 days after the opposition is served and filed. 3 e. The motion shall be deemed submitted as of the date the 4 reply is due. No hearing will be held on the motion unless the court so orders at a 5 later date. 6 3. Discovery may be taken in accordance with the Federal Rules of 7 Civil Procedure. No further court order under Federal Rule of Civil Procedure 8 30(a)(2) or Local Rule 16 is required before the parties may conduct discovery. 9 4. All communications by plaintiff with the court must be served on 10 defendants, or defendants' counsel once counsel has been designated, by mailing 11 a true copy of the document to defendants or defendants' counsel. 12 5. It is plaintiff's responsibility to prosecute this case. Plaintiff must 13 keep the court and all parties informed of any change of address and must comply 14 with the court's orders in a timely fashion. Failure to do so may result in the 15 dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b). 16 SO ORDERED. 17 DATED: Feb. 1, 2013 CHARLES R. BREYER United States District Judge 18 19 20 21 22 23 24 25 26 G:\PRO-SE\CRB\CR.12\Garza, E.12-3354.serve.wpd 27 28 6

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