Gray v. Doe

Filing 4

ORDER OF SERVICE; GRANTING MOTION FOR MARSHAL TO SERVE DEFENDANTS; DENYING APPOINTMENT OF COUNSEL: Defendant's Dispositive Motion due by 8/2/2013.. Signed by Judge William Alsup on 5/1/13. (Attachments: # 1 Certificate of Service)(tlS, COURT STAFF) (Filed on 5/1/2013) Modified on 5/2/2013 (tlS, COURT STAFF).

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8
FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

1229
No. C 13-1299 WHA (PR)

11
KENNETH GRAY,
For the Northern District of California

United States District Court

10

12
ORDER OF SERVICE; GRANTING
MOTION FOR MARSHAL TO
SERVE DEFENDANTS; DENYING
APPOINTMENT OF COUNSEL

Plaintiff,
13
v.
14
15

T. SMITH; L. PENNISI; R.
GROUNDS; MIKE KU; DOES
Defendants

16

(Docket Nos. 2, 3)
/

17
18

INTRODUCTION
19
Plaintiff, a pro se prisoner, filed this civil rights case under 42 U.S.C. 1983 against
20
officials at Salinas Valley State Prison. He has paid the filing fee. For the reasons discussed
21
below, the complaint is ordered served upon defendants.
22
ANALYSIS
23
A.

STANDARD OF REVIEW

24
Federal courts must engage in a preliminary screening of cases in which prisoners seek
25
redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
26
1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims
27
which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
28
monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro

1

se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

2

(9th Cir. 1990).

3

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

4

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

5

statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds

6

upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).

7

Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

8

plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than

9

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do. . . . Factual allegations must be enough to raise a right to relief above the speculative

11
For the Northern District of California

United States District Court

10

level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

12

complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id.

13

at 1974.

14

To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements:

15

(1) that a right secured by the Constitution or laws of the United States was violated, and (2)

16

that the alleged deprivation was committed by a person acting under the color of state law.

17

West v. Atkins, 487 U.S. 42, 48 (1988).

18

B.

19

LEGAL CLAIMS
Plaintiff alleges that following a prison riot in which he did not participate, a

20

correctional officer applied plastic handcuffs to his wrists so tightly that they cut his right wrist.

21

Over the next five and a half hours he complained repeatedly to defendants Smith, Pennisi and

22

Ku, among many others, about being in extreme pain from the handcuffs, but they did not

23

loosen or cut them. He alleges that he subsequently sought medical care for his wrist from

24

defendant Ku, but she ignored his complaints that his wrist continued to bother him. He was

25

eventually diagnosed with a pinched nerve in his right hand, from which he continued to suffer

26

many months later. When liberally construed, plaintiff’s allegations state a cognizable claim for

27

violating his Eighth Amendment rights to be free from cruel and unusual punishment.

28
2

1

CONCLUSION

2

For the reasons set out above, it is hereby ordered as follows:

3

1. The clerk shall issue summons and the United States Marshal shall serve, without

4

prepayment of fees, a copy of the complaint with all attachments thereto, and a copy of this

5

order upon defendants: Correctional Sergeant T. Smith, Correctional Sergeant L. Pennisi,

6

Nurse Mike Ku, and Warden R. Grounds at Salinas Valley State Prison. A courtesy copy

7

of the amended complaint with attachments and this order shall also be mailed to the California

8

Attorney General’s Office.

9

11
For the Northern District of California

United States District Court

10

12

2. Defendants shall file an answer in accordance with the Federal Rules of Civil
Procedure.
3. In order to expedite the resolution of this case:
a. No later than 91 days from the date this order is filed, defendants shall file a

13

motion for summary judgment or other dispositive motion. If defendants are of the opinion that

14

this case cannot be resolved by summary judgment, they shall so inform the court prior to the

15

date the summary judgment motion is due. All papers filed with the court shall be promptly

16

served on the plaintiff.

17

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

18

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

19

Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to

20

him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and

21

Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

22

If defendants file an unenumerated motion to dismiss claiming that plaintiff failed to

23

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

24

should take note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),”

25

which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir.),

26

cert. denied, Alameida v. Wyatt, 124 S.Ct 50 (2003).

27
28

c. Defendants shall file a reply brief no later than 14 days after the date of
service of the opposition.
3

1
2

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.

3

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

4

applicable warning(s) required by Woods v. Carey, No. 09-15548, slip op. 7871 (9th Cir. July 6,

5

2012) and/or Stratton v. Buck, No. 10-35656, slip op. 11477 (9th Cir. Sept. 19, 2012), at the

6

same time they served him with their motion. Failure to do so will result in the summary

7

dismissal of their motion without prejudice.

8
9

defendant’s counsel once counsel has been designated, by mailing a true copy of the document
to defendant or defendant’s counsel.

11
For the Northern District of California

United States District Court

10

4. All communications by the plaintiff with the court must be served on defendant, or

5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

12

No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is

13

required before the parties may conduct discovery.

14

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

15

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

16

Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

17

Federal Rule of Civil Procedure 41(b).

18

7. Plaintiff’s motion for appointment of counsel (dkt. 2) is DENIED because the issues

19

are not complex at this stage of the case. Plaintiff’s motion for the Marshal to serve the

20

defendants (dkt. 3) is GRANTED.

21

IT IS SO ORDERED.

22
Dated: April
23

, 2013.

5/1/2013

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

24
25
26
27

G:\PRO-SE\WHA\CR.13\GRAY1229.SRV.wpd

28
4

1
2
3
4
5
6
7
8

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.

9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16

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.

17
18
19
20
21
22
23
24
25
26
27
28
5