Youngs -v- San Francisco Police Department, et al

Filing 7

ORDER OF SERVICE; ORDER DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK. Signed by Judge Richard Seeborg on 7/7/14. (Attachments: # 1 Certificate/Proof of Service)(clS, COURT STAFF) (Filed on 7/7/2014)

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1 2 *E-Filed 7/7/14* 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN FRANCISCO DIVISION 9 United States District Court For the Northern District of California 10 11 ORDER OF SERVICE; Plaintiff, 12 13 No. C 14-1020 RS (PR) TYRONE YOUNGS, ORDER DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; v. SFPD, et al., 14 Defendants. / 15 INSTRUCTIONS TO CLERK 16 INTRODUCTION 17 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state 18 19 prisoner. In response to the complaint defendant is directed to file a dispositive motion or 20 notice regarding such motion on or before October 15, 2014, unless an extension is granted. It appears that the claims are unexhausted. Defendant is directed to consider 21 22 first whether the claims are unexhausted. If defendant so concludes, she may file a 23 motion to dismiss on such grounds, though she is not required to do so. DISCUSSION 24 25 26 27 A. Standard of Review A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) 28 No. C 14-1020 RS (PR) ORDER OF SERVICE 1 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 2 plausibility when the plaintiff pleads factual content that allows the court to draw the 3 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 4 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 5 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 6 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 8 that a right secured by the Constitution or laws of the United States was violated, and 9 that the alleged violation was committed by a person acting under the color of state law. See United States District Court For the Northern District of California 10 B. (2) West v. Atkins, 487 U.S. 42, 48 (1988). 11 (1) 12 Legal Claims Plaintiff alleges claims against (1) the San Francisco Police Department; (2) a San 13 Bruno County deputy sheriff; and (3) his public defender. Claim 1 is DISMISSED WITH 14 PREJUDICE because, as plaintiff notes, these claims have been raised in a separate action. 15 Claim 3 is DISMISSED (without prejudice) because the claim against his public defender 16 involves different facts and defendants than his claim against the deputy sheriff. See Fed. R. 17 Civ. P. 20. If plaintiff wishes to pursue Claim 3, he must file a separate civil rights action. 18 Claim 2 remains. Plaintiff alleges that San Bruno Deputy Sheriff James, a female 19 officer, stated within the hearing of other inmates that plaintiff could not work in the kitchen 20 “because you have HIV.” (Compl. at 3.) Liberally construed, these allegations state a claim 21 for a violation of plaintiff’s constitutionally-protected expectation of privacy in medical 22 matters. 23 CONCLUSION 24 For the foregoing reasons, the Court orders as follows: 25 1. The Clerk of the Court shall issue summons and the United States Marshal 26 shall serve, without prepayment of fees, a copy of the complaint in this matter, all 27 attachments thereto, and a copy of this order upon San Bruno Deputy Sheriff James at the 28 No. C 14-1020 RS (PR) ORDER OF SERVICE 2 1 San Bruno County Jail. The Clerk shall also mail courtesy copies of the complaint and this 2 order to the California Attorney General’s Office. 2. 3 No later than ninety (90) days from the date of this order, defendants shall file a 4 motion for summary judgment or other dispositive motion with respect to the claims in the 5 complaint found to be cognizable above. 6 a. If defendants elect to file a motion to dismiss on the grounds plaintiff 7 failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), 8 defendants shall do so in a motion for summary judgment, as required by Albino v. Baca, 9 No. 10-55702, slip op. at 4 (9th Cir. Apr. 3, 2014) (en banc). United States District Court For the Northern District of California 10 b. Any motion for summary judgment shall be supported by adequate factual 11 documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil 12 Procedure. Defendants are advised that summary judgment cannot be granted, nor qualified 13 immunity found, if material facts are in dispute. If any defendant is of the opinion that this 14 case cannot be resolved by summary judgment, he shall so inform the Court prior to the date 15 the summary judgment motion is due. 16 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court and 17 served on defendants no later than forty-five (45) days from the date defendants’ motion is 18 filed. 19 20 21 22 23 4. Defendants shall file a reply brief no later than fifteen (15) days after plaintiff’s opposition is filed. 5. 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. 6. All communications by the plaintiff with the Court must be served on 24 defendants, or defendants’ counsel once counsel has been designated, by mailing a true copy 25 of the document to defendants or defendants’ counsel. 26 27 7. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 28 No. C 14-1020 RS (PR) ORDER OF SERVICE 3 1 2 Rule 16-1 is required before the parties may conduct discovery. 8. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 3 court informed of any change of address and must comply with the court’s orders in a timely 4 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 5 pursuant to Federal Rule of Civil Procedure 41(b). 6 7 8 9 9. Extensions of time must be filed no later than the deadline sought to be extended and must be accompanied by a showing of good cause. 10. A recent decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be given “notice of what is required of them in order to oppose” summary judgment motions United States District Court For the Northern District of California 10 at the time of filing of the motions, rather than when the court orders service of process or 11 otherwise before the motions are filed. Woods v. Carey, 684 F.3d 934, 939–41 (9th Cir. 12 2012). Defendants shall provide the following notice to plaintiff when they file and serve 13 any motion for summary judgment: 14 15 16 The defendants have made a motion for summary judgment by which they seek 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. 23 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 defendants’ 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. Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998). 24 IT IS SO ORDERED. 17 18 19 20 21 22 25 DATED: July 7, 2014 RICHARD SEEBORG United States District Judge 26 27 28 No. C 14-1020 RS (PR) ORDER OF SERVICE 4

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