Shove v. McDonald et al

Filing 13

ORDER OF SERVICE by Judge James Donato denying 5 Motion for TRO; denying 10 Motion to Appear by Telephone; denying 11 Motion to Appear by Telephone (lrcS, COURT STAFF) (Filed on 10/3/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THEODORE SHOVE,
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Case No. 14-cv-02903-JD

Plaintiff,

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v.

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United States District Court
Northern District of California

ORDER OF SERVICE
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MCDONALD, et al.,
Re: Dkt. Nos. 5, 10, 11

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Defendants.

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.

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He has been granted leave to proceed in forma pauperis.
DISCUSSION

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I.

STANDARD OF REVIEW
Federal courts must engage in a preliminary screening of cases in which prisoners seek

redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims
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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”
standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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United States District Court
Northern District of California

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

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the Constitution or laws of the United States was violated, and (2) the alleged deprivation was
committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
II.

LEGAL CLAIMS
Plaintiff alleges that defendants were deliberately indifferent to his serious medical needs.

Deliberate indifference to serious medical needs violates the Eighth Amendment’s proscription
against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v.

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Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc.
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v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of “deliberate

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indifference” involves an examination of two elements: the seriousness of the prisoner's medical

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need and the nature of the defendant’s response to that need. Id. at 1059.

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A serious medical need exists if the failure to treat a prisoner's condition could result in
further significant injury or the “unnecessary and wanton infliction of pain.” Id. The existence of
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an injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment, the presence of a medical condition that significantly affects an individual’s daily

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activities, or the existence of chronic and substantial pain are examples of indications that a

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prisoner has a serious need for medical treatment. Id. at 1059-60.

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A prison official is deliberately indifferent if he or she knows that a prisoner faces a
substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate
it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm exists,” but
also “must also draw the inference.” Id. If a prison official should have been aware of the risk,

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United States District Court
Northern District of California

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but did not actually know, the official has not violated the Eighth Amendment, no matter how

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severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). “A difference

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of opinion between a prisoner-patient and prison medical authorities regarding treatment does not
give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In

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addition “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical
indifference.... [Prisoner] would have no claim for deliberate medical indifference unless the

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denial was harmful.” Shapely v. Nevada Bd. Of State Prison Comm’rs, 766 F.2d 404, 407 (9th

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Cir. 1985).

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Plaintiff states that his hand was completely severed and then surgically repaired prior to
being placed in his current prison. As a result, plaintiff was provided either large wrist handcuffs
or waist chains. At a certain point only normal size wrist handcuffs were used, despite plaintiff’s

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objections, and he suffered pain and cuts on his wrists. Plaintiff also states that as a result of the

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normal handcuffs, he slipped and fell down the stairs. Liberally construed, this claim is sufficient

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to require a response.1

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As plaintiff has failed to link Warden Chappell to the alleged violations, he will be dismissed
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Plaintiff has also filed a motion for a temporary restraining order. "A preliminary

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injunction is ‘an extraordinary and drastic remedy, one that should not be granted unless the

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movant, by a clear showing, carries the burden of persuasion.'" Lopez v. Brewer, et al., 680 F.3d

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1068, 1072 (9th Cir. 2012) (citation omitted) (emphasis in original). The standard for issuing a

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TRO is similar to that required for a preliminary injunction. See Los Angeles Unified Sch. Dist. v.

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United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J., dissenting). "A

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plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,
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that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural

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Northern District of California

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Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Plaintiff has failed to meet this high

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burden based on his allegations that the handcuffs have injured his wrists and caused cuts.

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CONCLUSION
1.

Plaintiff’s motion for a temporary restraining order (Docket No. 5) is DENIED.

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Plaintiff’s motions to appear by telephone (Docket Nos. 10, 11) are DENIED.

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

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prepayment of fees, copies of the complaint with attachments and copies of this order on the

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following defendants: Captain McDonald, Lt. Arnold, and Dr. Grant at San Quentin State Prison.

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Warden Chappell is dismissed from this action.

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4.

In order to expedite the resolution of this case, the court orders as follows:

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a.

No later than sixty days from the date of service, defendant shall file a

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motion for summary judgment or other dispositive motion. The motion shall be supported by

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adequate factual documentation and shall conform in all respects to Federal Rule of Civil

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Procedure 56, and shall include as exhibits all records and incident reports stemming from the

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from this action.
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events at issue. If defendant is of the opinion that this case cannot be resolved by summary

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judgment, he shall so inform the court prior to the date his summary judgment motion is due. All

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papers filed with the court shall be promptly served on the plaintiff.

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b.

At the time the dispositive motion is served, defendant shall also serve, on a

separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).

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See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be
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given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed,
not earlier); Rand at 960 (separate paper requirement).
c.

United States District Court
Northern District of California

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Plaintiff’s opposition to the dispositive motion, if any, shall be filed with

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the court and served upon defendant no later than thirty days from the date the motion was served

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upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is

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

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and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
If defendant files a motion for summary judgment claiming that plaintiff failed to exhaust

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

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note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided

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to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).

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d.

If defendant wishes to file a reply brief, he shall do so no later than fifteen

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days after the opposition is served upon him.
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e.

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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.
5.

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

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

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defendants or defendants’ counsel.
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6.

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

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No further court order under Federal Rule of Civil Procedure 30(a)(2) is required before the

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parties may conduct discovery.

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United States District Court
Northern District of California

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7.

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

informed of any change of address by filing a separate paper with the clerk headed “Notice of
Change of Address.” He also must comply with the court’s orders in a timely fashion. Failure to
do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of
Civil Procedure 41(b).
IT IS SO ORDERED.
Dated: October 3, 2014
______________________________________
JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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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.
NOTICE -- WARNING (EXHAUSTION)
If defendants file a motion for summary judgment for failure to exhaust, they are seeking
to have your case dismissed. If the motion is granted it will end your case.
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.
If defendants file a motion for summary judgment for failure to exhaust and it is granted,
your case will be dismissed and there will be no trial.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THEODORE SHOVE,

Case No. 14-cv-02903-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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MCDONALD, et al.,
Defendants.

United States District Court
Northern District of California

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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 10/3/2014, 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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Theodore Shove ID: G11092
San Quentin State Prison
San Quentin, CA 94974

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Dated: 10/3/2014

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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