Lopez v. Clous et al

Filing 4

ORDER OF SERVICE Habeas Answer or Dispositive Motion due by 2/18/2014.. Signed by Judge Charles R. Breyer on 12/11/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 12/17/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FERNANDO G. LOPEZ, AN-1753,
Plaintiff(s),

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v.

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SERGEANT CLOUS, et al.,
Defendant(s).

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No. C 13-3870 CRB (PR)
ORDER OF SERVICE

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Plaintiff, a prisoner at San Quentin State Prison (SQSP), has filed a pro se

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complaint under 42 U.S.C. § 1983 alleging that on September 21, 2011, while he

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was driving on Southwest expressway and Liegh Avenue in San Jose, Santa

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Clara County “police officers” pulled him over, threw him out of his car and on

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to the ground, and proceeded to assault and beat him. Plaintiff specifically

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alleges that Sergeant Clous and officers Nick Nguyen, Ken Henderson, Aric

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Enos, Justin Mead, Luis Martin and John Pate “beat me severely by punching me,

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and kicking me repeatedly to the point of me losing consciousness and then

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continued to punch and kick my face in.” Compl. at 3.

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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
An allegation of use of excessive force by a law enforcement officer in the

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context of an arrest or investigatory stop states a valid Fourth Amendment claim

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under § 1983. See Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir.

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1986), overruled on other grounds by Graham v. Connor, 490 U.S. 386 (1989);

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see also Forrester v. City of San Diego, 25 F.3d 804, 806 (9th Cir. 1994)

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(excessive force claims which arise in the context of an arrest or investigatory

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stop of a free citizen are analyzed under the Fourth Amendment reasonableness

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standard). Liberally construed, plaintiff’s allegations that Sergeant Clous and

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officers Nick Nguyen, Ken Henderson, Aric Enos, Justin Mead, Luis Martin and

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John Pate beat him severely after pulling him over state a cognizable § 1983

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claim against these defendants, who the attachments to the complaint suggest are

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Santa Clara County deputy sheriffs, and will be ordered served on them.

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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 following defendants at the

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Santa Clara County Office of the Sheriff: Sergeant Clous (#C6627) and officers

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Nick Nguyen (#N8081), Ken Henderson (#H9643), Aric Enos (#E8459), Justin

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Mead (#M5399), Luis Martin (#M642) and John Pate (#P0244). The clerk also

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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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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
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

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present it in your opposition in order to dispute any “factual record” presented by

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the defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108,

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1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show

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that you did exhaust your available administrative remedies before coming to

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federal court. Such evidence may include: (1) declarations, which are statements

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signed under penalty of perjury by you or others who have personal knowledge

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of 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

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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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: Dec. 11, 2013
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.13\Lopez, F.13-3870.serve.wpd

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