Robertson v. Struffert

Filing 6

ORDER 0F SERVICE. Dispositive Motion due by 1/17/2013.. Signed by Judge Jeffrey S. White on 10/25/12. (jjoS, COURT STAFF) (Filed on 10/25/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WAYNE JEROME ROBERTSON,
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Plaintiff,
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v.
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SGT. W. STRUFFERT, et al.,
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Defendants.
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No. C 12-4698 JSW (PR)
ORDER OF SERVICE

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INTRODUCTION
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Plaintiff, a California prisoner proceeding pro se, filed this civil rights complaint
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under 42 U.S.C. § 1983 against officials at Pelican Bay State Prison, where Plaintiff was
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formerly housed. Plaintiff’s application to proceed in forma pauperis is granted in a
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separate order. This Court now reviews the complaint pursuant to 28 U.S.C. § 1915A
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and orders it served upon certain Defendants.
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DISCUSSION
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I.

Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners
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seek redress from a governmental entity or officer or employee of a governmental entity.
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28 U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss the
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complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or
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fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a
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defendant who is immune from such relief.” Id. § 1915A(b). Pro se pleadings must be

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liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1990).

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

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007) (citations omitted). Although in order to state a claim a complaint “does not need

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detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his

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'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. . . . Factual allegations must

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be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v.

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Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer

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"enough facts to state a claim for relief that is plausible on its face." Id. at 1974. Pro se

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

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699 (9th Cir. 1990).

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"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

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detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his

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'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. . . . Factual allegations must

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be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at

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553-56. A motion to dismiss should be granted if the complaint does not proffer "enough

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facts to state a claim for relief that is plausible on its face." Id. at 570. This standard

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applies to all cases. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009) (finding

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under Twombly and Rule 8 of the Federal Rules of Civil Procedure, that complainant-

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detainee in a Bivens action failed to plead sufficient facts “plausibly showing” that top

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federal officials “purposely adopted a policy of classifying post-September-11 detainees

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as ‘of high interest’ because of their race, religion, or national origin” over more likely

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and non-discriminatory explanations). From these decisions, the following “two

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principles” arise: “First to be entitled to the presumption of truth, allegations in a

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complaint or counterclaim may not simply recite the elements of a cause of action but

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must contain sufficient allegations of underlying facts to give fair notice and to enable

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the opposing party to defend itself effectively. Second, the factual allegations that are

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taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to

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require the opposing party to be subjected to the expense of discovery and continued

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litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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II.

Legal Claims

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When liberally construed, Plaintiff’s allegations that excessive force was used

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against him during a cell extraction, states a cognizable claim for the violation of his

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Eighth Amendment rights against Defendants Sergeant W. Struffert and Captain K.

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Cruse. The complaint will be ordered served upon these Defendants.

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Plaintiff alleges that Defendants A. Perpiot, N. Cervantes, and J. Whitlow did not

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follow prison procedures for videotaping and reporting the use of force. These

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allegations do not state a cognizable claim for relief, even when liberally construed,

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because there is no constitutional right to a videotape or report on the use of force, nor is

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there any other federal law implicated by the failure these Defendants’ actions. Plaintiff

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alleges that Defendant E. Scott asked him to hand over his medication for high blood

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pressure, and that when he refused, Defendants Nelson and Martinez ordered him to

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“cuff up.” These allegations, even when liberally construed, also do not state a

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cognizable claim for relief because such actions do not by themself violate any federal

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constitutional right or other federal law. Consequently, the claims against these

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defendants will be dismissed.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1. The claims against Defendants E. Scott, A. Perpiot, D. Nelson, R.E. Martinez,

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J. Whitlow, and N. Cervantes are DISMISSED. The claims against Defendants W.

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Struffert and K. Cruse are, when liberally construed, cognizable.

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2. The Clerk of the Court shall issue summons and the United States Marshal

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shall serve, without prepayment of fees, a copy of the complaint and all attachments

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thereto, and a copy of this order upon Defendants: Sergeant W. Struffert and Captain

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K. Cruse at Pelican Bay State Prison.

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The Clerk shall also mail a courtesy copy of the complaint with all attachments
thereto, and this order to the California Attorney General’s Office.

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The Clerk shall also serve a copy of this order on Plaintiff.

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3. Defendants shall file an answer to the complaint in accordance with the

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Federal Rules of Civil Procedure.
4. In order to expedite the resolution of this case:
a. No later than 84 days from the date this order is filed, defendants shall

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

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opinion that this case cannot be resolved by summary judgment, they shall so inform the

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court prior to the date the summary judgment motion is due. All papers filed with the

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court shall be promptly served on the plaintiff.

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

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the court and served upon defendants no later than 28 days from the date of service of

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

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which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir.

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1998) (en banc), 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

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

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plaintiff should take note of the attached page headed “NOTICE -- WARNING

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(EXHAUSTION),” which is provided to him as required by Wyatt v. Terhune, 315 F.3d

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1108, 1120 n. 4 (9th Cir.), cert. denied, Alameida v. Wyatt, 124 S.Ct 50 (2003).

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c. Defendants shall file a reply brief no later than 14 days after the date of
service of the opposition.

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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.
e. Along with their motion, defendants shall proof that they served

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plaintiff the applicable warning(s) required by Woods v. Carey, No. 09-15548, slip op.

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7871 (9th Cir. July 6, 2012) and/or Stratton v. Buck, No. 10-35656, slip op. 11477 (9th

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Cir. Sept. 19, 2012), at the same time they served him with their motion. Failure to do so

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will result in the summary dismissal of their motion without prejudice.

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5. All communications by the plaintiff with the court must be served on

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defendant, or defendant’s counsel once counsel has been designated, by mailing a true

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copy of the document to defendant or defendant’s counsel.
6. Discovery may be taken in accordance with the Federal Rules of Civil

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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or

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Local Rule 16-1 is required before the parties may conduct discovery.

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

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

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timely fashion. Failure to do so may result in the dismissal of this action for failure to

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prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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DATED: October 25, 2012
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JEFFREY S. WHITE
United States District Judge

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case
dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary judgment.
Generally, summary judgment must be granted when there is no genuine issue of material
fact--that is, if there is no real dispute about any fact that would affect the result of your case,
the party who asked for summary judgment is entitled to judgment as a matter of law, which
will end your case. When a party you are suing makes a motion for summary judgment that is
properly supported by declarations (or other sworn testimony), you cannot simply rely on what
your complaint says. Instead, you must set out specific facts in declarations, depositions,
answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that
contradict the facts shown in the defendant's declarations and documents and show that there is
a genuine issue of material fact for trial. If you do not submit your own evidence in opposition,
summary judgment, if appropriate, may be entered against you. If summary judgment is granted,
your case will be dismissed and there will be no trial.

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NOTICE -- WARNING (EXHAUSTION)
If defendants file a motion to dismiss for failure to exhaust administrative remedies, they
are seeking to have your case dismissed. If the motion is granted it will end your case and there
will be no trial.
A motion to dismiss for failure to exhaust administrative remedies is similar to a motion
for summary judgment in that the court will consider materials beyond the pleadings. You have
the right to present any evidence you may have which tends to show that you did exhaust your
administrative remedies. Such evidence may be in the form of declarations (statements signed
under penalty of perjury) or authenticated documents, that is, documents accompanied by a
declaration showing where they came from and why they are authentic, or other sworn papers,
such as answers to interrogatories or depositions. In considering a motion to dismiss for failure
to exhaust administrative remedies, the court can decided disputed factual matters with regard to
the exhaustion question. Because the court can resolve factual disputes, unlike a summary
judgment opposition, it is not enough to merely show a genuine issue of material fact in
opposition to the motion to dismiss.

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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WAYNE J ROBERTSON,

Case Number: CV12-04698 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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W STRUFFERT et al,

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Defendant.

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 25, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Wayne J. Robertson #C-24851
High Desert State Prison
P.O. Box 3030
Susanville, CA 96127
Dated: October 25, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk