Pacheco v. Gamboa et al

Filing 10

ORDER OF SERVICE; ORDER DIRECTING DEFENDANTS TO FILE A DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION. Signed by Chief Magistrate Judge Joseph C. Spero on 7/7/15. (klhS, COURT STAFF) (Filed on 7/7/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE P. PACHECO,

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Case No. 15-cv-00987-JCS (PR)

Plaintiff,
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ORDER OF SERVICE;

United States District Court
Northern District of California

v.
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ORDER DIRECTING DEFENDANTS
TO FILE A DISPOSITIVE MOTION
OR NOTICE REGARDING SUCH
MOTION;

LAWRENCE GAMBOA, et al.,

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Defendants.
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INSTRUCTIONS TO CLERK

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INTRODUCTION

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In this federal civil rights action brought under 42 U.S.C. § 1983, plaintiff, a state
prisoner proceeding pro se, raises claims that medical staff at Salinas Valley State Prison
provided constitutionally inadequate medical care.1 The complaint has been reviewed by
the Court pursuant to 28 U.S.C. § 1915A(a).

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In response to the complaint, defendants are directed to file a dispositive motion or
notice regarding such motion on or before October 6, 2015. The Court further directs that
defendants are to adhere to the notice provisions detailed in Sections 2.a and 10 of the
conclusion of this order.

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Plaintiff consented to magistrate judge jurisdiction. (Compl. at 11.) The magistrate
judge, then, has jurisdiction to decide this motion, even though defendants have not been
served or consented to magistrate judge jurisdiction. See Neals v. Norwood, 59 F.3d 530,
532 (5th Cir. 1995)

DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

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upon which relief may be granted or seek monetary relief from a defendant who is immune

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from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed.

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See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
A ―complaint must contain sufficient factual matter, accepted as true, to ‗state a

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United States District Court
Northern District of California

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claim to relief that is plausible on its face.‘‖ Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

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(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). ―A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.‖ Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court ―is not required to accept legal

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conclusions cast in the form of factual allegations if those conclusions cannot reasonably

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be drawn from the facts alleged.‖ Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55

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(9th Cir. 1994). 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 United States

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was violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims

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In his first claim, plaintiff alleges that in 2012 and 2013, Salinas Valley Drs.

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R. Mack and Lawrence Gamboa failed to supply him with sufficient medication to treat the

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pain he experiences from his degenerative spine condition. In his second claim, he alleges

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that Salinas Valley nurses Mark Allyser and Concepcion falsely accused plaintiff of

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diverting or hoarding his medication. Both claims, when liberally construed, state claims

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for relief and shall proceed.
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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

The Clerk of the Court shall issue summons and the United States Marshal

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shall serve, without prepayment of fees, a copy of the operative complaint in this matter

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(Docket No. 1), all attachments thereto, and a copy of this order upon Drs. R. Mack and

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Lawrence Gamboa, and nurses Mark Allyser and Concepcion, at Salinas Valley State

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Prison. The Clerk shall also mail courtesy copies of the complaint and this order to the

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California Attorney General‘s Office.

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2.

No later than ninety (90) days from the date of this order, defendant shall file

a motion for summary judgment or other dispositive motion with respect to the claims in

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United States District Court
Northern District of California

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the complaint found to be cognizable above.
a.

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If defendant elects to file a motion to dismiss on the grounds plaintiff

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failed to exhaust his available administrative remedies as required by 42 U.S.C.

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§ 1997e(a), defendant shall do so in a motion for summary judgment, as required by

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Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014).
b.

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Any motion for summary judgment shall be supported by adequate

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factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of

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Civil Procedure. Defendant is advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If any defendant is of the

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opinion that this case cannot be resolved by summary judgment, he shall so inform the

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Court prior to the date the summary judgment motion is due.

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3.

Plaintiff‘s opposition to the dispositive motion shall be filed with the Court

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and served on defendant no later than forty-five (45) days from the date defendant‘s

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motion is filed.

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4.

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Defendant shall file a reply brief no later than fifteen (15) days after

plaintiff‘s opposition is filed.
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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.
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6.

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

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defendant, or defendant‘s counsel once counsel has been designated, by mailing a true

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copy of the document to defendant or defendant‘s counsel.

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7.

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 16-1 is required before the parties may conduct discovery.

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8.

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

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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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United States District Court
Northern District of California

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prosecute pursuant to Federal Rule of Civil Procedure 41(b).
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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 decision from the Ninth Circuit requires that pro se prisoner-plaintiffs

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be given ―notice of what is required of them in order to oppose‖ summary judgment

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motions at the time of filing of the motions, rather than when the court orders service of

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process or otherwise before the motions are filed. Woods v. Carey, 684 F.3d 934, 939–41

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(9th Cir. 2012). Defendants shall provide the following notice to plaintiff when they file

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and serves any motion for summary judgment:

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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.
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),
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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.

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Rand v. Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998).

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IT IS SO ORDERED.

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Dated: July 7, 2015
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE P. PACHECO,

Case No. 15-cv-00987-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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LAWRENCE GAMBOA, et al.,
Defendants.

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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 July 7, 2015, 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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Steve P. Pacheco ID: AG 8695
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960

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Dated: July 7, 2015

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
Karen Hom, Deputy Clerk to Chief
Magistrate Judge JOSEPH C. SPERO

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