Enriquez v. Posson et al

Filing 15

ORDER OF SERVICE. Signed by Magistrate Judge Maria-Elena James on 9/18/2015. (rmm2S, COURT STAFF) (Filed on 9/18/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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JAVIER ADRIAN ENRIQUEZ, JR.

No. C 15-0192 MEJ (PR)

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Plaintiff,

ORDER OF SERVICE

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v.
S. POSSON, et al.,
Defendant.

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/

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INTRODUCTION

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Plaintiff, an inmate at Salinas Valley State Prison (SVSP) in Soledad, California filed

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this pro se civil rights action under 42 U.S.C. § 1983 alleging that staff at SVSP have

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neglected to treat his hemorrhoid condition. The Court reviewed his original complaint and

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dismissed it with leave to amend. Plaintiff then filed an amended complaint, which is now

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before the Court for review under 28 U.S.C. § 1915A. Plaintiff names as defendants Dr. S.

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Posson, LVN Concepcion, and medical window receptionist Kendra.
DISCUSSION

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A federal court must engage in a preliminary screening of any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a governmental

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entity. 28 U.S.C. § 1915A(a). In its review the Court must identify any cognizable claims,

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and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief
may be

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granted, or seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

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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 elements: (1) that

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

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violation was committed by a person acting under the color of state law. West v. Atkins, 487

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U.S. 42, 48 (1988). Liability may be imposed on an individual defendant under § 1983 if the

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plaintiff can show that the defendant proximately caused the deprivation of a federally

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protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives

United States District Court
For the Northern District of California

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another of a constitutional right within the meaning of § 1983 if he does an affirmative act,

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participates in another’s affirmative act or omits to perform an act which he is legally

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required to do, that causes the deprivation of which the plaintiff complains. Id. at 633. The

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inquiry into causation must be individualized and focus on the duties and responsibilities of

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each individual defendant whose acts or omissions are alleged to have caused a constitutional

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deprivation. Id. Sweeping conclusory allegations will not suffice; the plaintiff must instead

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“set forth specific facts as to each individual defendant’s” deprivation of protected rights. Id.

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at 634.

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When liberally construed, the allegations in plaintiff’s amended complaint state a

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cognizable claim that defendants were deliberately indifferent to plaintiff’s serious medical

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needs, in violation of the Eighth Amendment.

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CONCLUSION
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The Clerk shall issue a summons and Magistrate Judge jurisdiction consent

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form and the United States Marshal shall serve, without prepayment of fees, the summons,

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Magistrate Judge jurisdiction consent form, copies of the amended complaint with

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attachments and copies of this order on Dr. S. Posson, LVN Concepcion, and medical

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window receptionist Kendra at Salinas Valley State Prison.

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The Clerk also shall mail a courtesy copy of the amended complaint and a copy of this
order to the California Attorney General’s Office.
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2.

In order to expedite the resolution of this case, the Court orders as follows:
a.

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No later than 91 days from the date this order is filed, defendants must

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file and serve a motion for summary judgment or other dispositive motion. A motion for

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summary judgment also must be accompanied by a Rand notice so that plaintiff will have

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fair, timely and adequate notice of what is required of him in order to oppose the motion.

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Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v.

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Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with motion for

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summary judgment).1

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United States District Court
For the Northern District of California

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If defendants are of the opinion that this case cannot be resolved by summary
judgment, defendants must so inform the Court prior to the date the motion is due.

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b.

Plaintiff’s opposition to the summary judgment or other dispositive

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motion must be filed with the Court and served upon defendants no later than 28 days from

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the date the motion is filed. Plaintiff must bear in mind the notice and warning regarding

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summary judgment provided later in this order as he prepares his opposition to any motion

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for summary judgment.

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c.

Defendants shall file a reply brief no later than 14 days after the date the

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opposition is filed. The motion shall be deemed submitted as of the date the reply brief is

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due. No hearing will be held on the motion.

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3.

Plaintiff is advised that a motion for summary judgment under Rule 56 of the

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Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you

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must do in order to oppose a motion for summary judgment. Generally, summary judgment

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must be granted when there is no genuine issue of material fact - that is, if there is no real

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If defendants assert that plaintiff failed to exhaust his available administrative remedies
as required by 42 U.S.C. § 1997e(a), defendants must raise such argument in a motion for
summary judgment, pursuant to the Ninth Circuit’s recent opinion in Albino v. Baca, 747 F.3d
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2003), which held that failure to exhaust available administrative remedies under the Prison
27 Litigation Reform Act, should be raised by a defendant as an unenumerated Rule 12(b) motion).
Such a motion should also incorporate a modified Wyatt notice in light of Albino. See Wyatt
28 v. Terhune, 315 F.3d 1108, 1120, n.14 (9th Cir. 2003); Stratton v. Buck, 697 F.3d 1004, 1008
(9th Cir. 2012).
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dispute about any fact that would affect the result of your case, the party who asked for

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summary 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 properly

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supported by declarations (or other sworn testimony), you cannot simply rely on what your

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complaint says. Instead, you must set out specific facts in declarations, depositions, answers

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to interrogatories, or authenticated documents, as provided in Rule 56(c), that contradict the

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facts shown in the defendants’ declarations and documents and show that there is a genuine

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issue of material fact for trial. If you do not submit your own evidence in opposition,

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summary judgment, if appropriate, may be entered against you. If summary judgment is

United States District Court
For the Northern District of California

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granted, your case will be dismissed and there will be no trial. Rand v. Rowland, 154 F.3d

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952, 962-63 (9th Cir. 1998) (en banc) (App. A).2

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4.

All communications by plaintiff with the Court must be served on defendants’

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counsel by mailing a true copy of the document to defendants’ counsel. The Court may

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disregard any document which a party files but fails to send a copy of to his opponent. Until

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defendants’ counsel has been designated, plaintiff may mail a true copy of the document

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directly to defendants, but once defendants are represented by counsel, all documents must

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be mailed to counsel rather than directly to defendants.

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5.

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 Local

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Rule 16 is required before the parties may conduct discovery.

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6.

Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep

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the 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). Plaintiff must file a notice of

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change of address in every pending case every time he is moved to a new facility.

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Any motion for an extension of time must be filed no later than the deadline

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The Rand notice provided herein does not excuse defendants’ obligation to serve said
notice again concurrently with a motion for summary judgment. Woods, 684 F.3d at 939.
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sought to be extended and must be accompanied by a showing of good cause.
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Plaintiff is cautioned that he must include the case name and case number for

this case on any document he submits to the Court for consideration in this case.

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IT IS SO ORDERED.

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DATED:

September 18, 2015

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Maria-Elena James

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United States Magistrate Judge

United States District Court
For the Northern District of California

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