Garza v. Hedgpeth et al
Filing
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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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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EDWARD GARZA, B-96513,
Plaintiff(s),
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v.
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ANTHONY HEDGPETH, et al.,
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Defendant(s).
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No. C 12-3354 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 that he was subjected to excessive
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force when correctional officers responded to his being attacked by another
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inmate by pepper spraying him while he was on the floor and by dragging him to
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a holding cage by his mechanical restraints. Plaintiff further alleges that he was
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denied prompt medical care and that defendants conspired to falsify reports of
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what transpired and charge him with battery on another inmate with a weapon.
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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).
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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Prison officials violated the Eighth Amendment if they apply force
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maliciously and sadistically to cause harm. See Hudson v. McMillian, 503 U.S.
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1, 6-7 (1992). Liberally construed, plaintiff's allegations that he was pepper
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sprayed while he was on the floor and dragged to a holding cage by his
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mechanical restraints appear to state a cognizable claim under § 1983 for use of
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excessive force and will be served on the corresponding defendants. So will
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plaintiff's allegations that he was denied prompt medical care. See Estelle v.
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Gamble, 429 U.S. 97, 104 (1976) (deliberate indifference to serious medical
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needs violates 8th Amendment).
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Plaintiff's allegations that defendants conspired to falsify reports of what
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transpired and charge him with battery on another inmate with a weapon are
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dismissed for failure to state a claim under § 1983 because it is well-established
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that a prisoner has no constitutionally guaranteed immunity from being falsely or
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wrongly accused of conduct which may result in the deprivation of a protected
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liberty interest. See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989);
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Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); see also Hanrahan v.
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Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984) (as long as prisoner is afforded
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procedural due process in disciplinary hearing, allegations of fabricated charge
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fail to state a claim under § 1983). Plaintiff's invocation of a conspiracy makes
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no difference because a conspiracy is not itself a constitutional tort under § 1983.
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See Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012) (en banc)
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(conspiracy does not enlarge nature of claims asserted by plaintiff, as there must
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always be an underlying constitutional violation).1
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 named defendants at SVSP.
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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 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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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).
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v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand
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v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with
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motion for summary judgment). A motion to dismiss for failure to exhaust
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available administrative remedies must be accompanied by a similar notice.
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Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935
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(notice requirement set out in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003),
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must be served concurrently with motion to dismiss for failure to exhaust
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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). You have the right to present any evidence to show that you
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did exhaust your available administrative remedies before coming to federal
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court. Such evidence may include: (1) declarations, which are statements signed
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under penalty of perjury by you or others who have personal knowledge of
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relevant matters; (2) authenticated documents – documents accompanied by a
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declaration showing where they came from and why they are authentic, or other
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sworn papers such as answers to interrogatories or depositions; (3) statements in
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your complaint insofar as they were made under penalty of perjury and they show
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that you have personal knowledge of the matters state therein. In considering a
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motion to dismiss for failure to exhaust, the court can decide disputed issues of
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fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09.
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(The Rand and Wyatt/Stratton notices above do not excuse defendants'
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obligation to serve said notices again concurrently with motions to dismiss for
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failure to exhaust available administrative remedies and motions for summary
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judgment. Woods, 684 F.3d at 935.)
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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 under Federal Rule of Civil Procedure
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30(a)(2) or Local Rule 16 is required before the parties may 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: Feb. 1, 2013
CHARLES R. BREYER
United States District Judge
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G:\PRO-SE\CRB\CR.12\Garza, E.12-3354.serve.wpd
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