Kimbro v. Huffman et al

Filing 7

ORDER OF SERVICE Dispositive Motion due by 4/8/2013.. Signed by Judge Charles R. Breyer on 1/4/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 1/7/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICHARD J. KIMBRO, V77359,
Plaintiff(s),

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v.

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HUFFMAN, Correctional Officer, et al.,

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Defendant(s).

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No. C 12-4352 CRB (PR)
ORDER OF SERVICE

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Plaintiff, a prisoner at Kern Valley State Prison (KVSP), has filed a pro se

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complaint for damages under 42 U.S.C. § 1983 alleging that, while he was at

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Salinas Valley State Prison (SVSP), prison officials violated his right to due

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process when they found him guilty of possession of a controlled substance and

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placed him in administrative segregation without sufficient evidence to support

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the finding of guilty. Plaintiff also alleges that prison officials denied him needed

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medical care while he was in administrative segregation.

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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.

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Legal Claims
Allegations by a prisoner that he was denied due process in conjunction

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with a disciplinary proceeding do not present a constitutionally cognizable claim

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unless the deprivation suffered was one of "real substance" as defined in Sandin

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v. Conner, 515 U.S. 472 (1995). "Real substance" will generally be limited to

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freedom from (1) restraint that imposes "atypical and significant hardship on the

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inmate in relation to the ordinary incidents of prison life," Sandin, 515 U.S. at

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484, or (2) state action that "will inevitably affect the duration of [a] sentence,"

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id. at 487. Liberally construed, plaintiff's allegations state an arguable § 1983

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claim for denial of due process and will be served on the named defendants. But

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plaintiff will have to establish that the deprivation suffered was one of "real

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substance" under Sandin. Compare Serrano v. Francis, 345 F.3d 1071, 1078 (9th

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Cir. 2003) (placement in segregated housing in and of itself does not implicate a

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protected liberty interest entitling a prisoner to procedural due process

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protections) with Wilkinson v. Austin, 545 U.S. 209, 223-25 ( 2005) (indefinite

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placement in Ohio's "supermax" facility, where inmates are not eligible for parole

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consideration, imposes an "atypical and significant hardship within the

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correctional context"); Serrano, 345 F.3d at 1078-79 (finding protected liberty

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interest implicated when wheelchair-assisted inmate was put in SHU not

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designed for disabled persons – where he was denied use of wheelchair, was not

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able to take a proper shower, could not use the toilet without hoisting himself up

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by the seat, had to crawl into bed by his arms, could not partake in outdoor

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exercise in the non-accessible yard and had to drag himself around a vermin-and

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cockroach-infested floor – because the placement forced prisoner to endure a

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situation far worse than a non-disabled person sent to the SHU would have to

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face) and Burnsworth v. Gunderson, 179 F.3d 771, 773-74 (9th Cir. 1999) (even

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if discipline imposed is not severe enough to implicate a protected liberty

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interest, it violates prisoner's right to procedural due process if the discipline is

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supported by "no evidence").
It is well established that deliberate indifference to serious medical needs

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violates the Eighth Amendment's proscription against cruel and unusual

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punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). Liberally

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construed, plaintiff's allegations that prison officials denied him needed medical

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care while he was in administrative segregation state a cognizable § 1983 claim

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for deliberate indifference to serious medical needs and will be served on the

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named defendants.

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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 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

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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, 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.)
d.

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Defendants must serve and file a reply to an opposition not

more than 14 days after the opposition is served and filed.
e.

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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: January 4, 2013
CHARLES R. BREYER
United States District Judge

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