Gibbs v. Farley et al

Filing 4

ORDER OF SERVICE. Dispositive Motion due by 7/14/2016. Signed by Judge Thelton E. Henderson on 04/14/2016. (Attachments: # 1 Certificate/Proof of Service)(tmiS, COURT STAFF) (Filed on 4/14/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENNETH B. GIBBS, Case No. 16-cv-0731-TEH Plaintiff, 8 v. ORDER OF SERVICE 9 10 T. FARLEY, et. al., Defendants. United States District Court Northern District of California 11 12 13 Plaintiff, an inmate at California State Prison-Los Angeles 14 County, filed this pro se civil rights action under 42 U.S.C. § 15 1983. 16 a separate order. 17 initial screening pursuant to 28 U.S.C. § 1915A. Plaintiff is granted leave to proceed in forma pauperis in His complaint is now before the Court for 18 I 19 Federal courts must engage in a preliminary screening of 20 cases in which prisoners seek redress from a governmental entity 21 or officer or employee of a governmental entity. 22 1915A(a). 23 the complaint, or any portion of the complaint, if the complaint 24 “is frivolous, malicious, or fails to state a claim upon which 25 relief may be granted,” or “seeks monetary relief from a 26 defendant who is immune from such relief.” 27 Pleadings filed by pro se litigants, however, must be liberally 28 construed. 28 U.S.C. § The Court must identify cognizable claims or dismiss Id. § 1915A(b). Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); 1 Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 2 1990). 3 To state a claim under 42 U.S.C. § 1983, a plaintiff must 4 allege two essential elements: 5 Constitution or laws of the United States was violated, and (2) 6 that the alleged violation was committed by a person acting under 7 the color of state law. (1) that a right secured by the West v. Atkins, 487 U.S. 42, 48 (1988). 8 II 9 Plaintiff alleges that while at Pelican Bay State Prison (“PBSP”) several correctional officers used excessive force 11 United States District Court Northern District of California 10 against him while other officers failed to protect him. 12 In its prohibition of “cruel and unusual punishment,” the 13 Eighth Amendment places restraints on prison officials, who may 14 not, for example, use excessive force against prisoners. 15 v. McMillian, 503 U.S. 1, 6-7 (1992). 16 that prison officials used excessive force, he must show that the 17 officials applied force maliciously and sadistically to cause 18 harm. 19 2013). 20 unusual punishment, this does not mean that federal courts can or 21 should interfere whenever prisoners are inconvenienced or suffer 22 de minimis injuries. 23 whether the use of force was for the purpose of maintaining or 24 restoring discipline, or for the malicious and sadistic purpose 25 of causing harm, a court may evaluate the need for application of 26 force, the relationship between that need and the amount of force 27 used, the extent of any injury inflicted, the threat reasonably 28 perceived by the responsible officials, and any efforts made to Hudson Where a prisoner claims Id.; Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. Although the Eighth Amendment protects against cruel and Hudson, 503 U.S. at 9-10. 2 In determining 1 temper the severity of a forceful response. 2 LeMaire v. Maass, 12 F.3d 1444, 1454 (9th Cir. 1993); see also 3 Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979) (guards may 4 use force only in proportion to need in each situation). 5 Id., 503 U.S. at 7; Plaintiff asserts that on April 24, 2013, PBSP Officers T. 6 Farley and R. Graham came to Plaintiff’s cell to escort him to 7 another area. 8 Plaintiff and Officer Farley exchanges some hostile words, 9 Officers Farley and Andersen handled Plaintiff aggressively, 10 making him feel that his welfare and security were at stake. United States District Court Northern District of California 11 Officer J. Andersen was also present. After Upon exiting the building and out of sight of other inmates, 12 these Officers Farley and Anderson slammed Plaintiff against the 13 wall and told him that “if he moved, they were going to take him 14 down.” 15 Plaintiff back to his cell. 16 someone placed their foot before Plaintiff, causing him to fall. 17 While Plaintiff was falling, Officer Andersen placed his knee 18 upon Plaintiff’s back, causing Plaintiff’s handcuffs to tighten 19 so that he felt excruciating pain. 20 ground, Officers Andersen and Farley jammed their elbows into 21 Plaintiff’s neck, causing him more pain. 22 time, Plaintiff was not resisting the Officers. 23 arrived at the scene. 24 loins. 25 Plaintiff suffered a swollen eye, a swollen knee, and a sprained 26 wrist. 27 28 The Officers then reversed direction and began escorting Within a few feet of his cell, While Plaintiff was on the During this entire Other Officers Officer Chisman kicked Plaintiff in his As a result of the Officers’ use of excessive force, Based on these allegations, Plaintiff alleges the following claims: (1) an Eighth Amendment claim against Officers Farley, 3 1 Andersen, and Chisman based on their use of excessive force 2 against Plaintiff; (2) an Eighth Amendment claim against Officers 3 Graham and Chisman based on the fact that they were present when 4 the other Officers violated Plaintiff’s Eighth Amendment rights 5 and did nothing to stop them. 6 are sufficient to proceed.1 7 III 8 9 Liberally construed these claims For the foregoing reasons, the Court hereby orders as follows: 10 1. The Clerk of the Court shall issue summons and the United States District Court Northern District of California 11 United States Marshal shall serve, without prepayment of fees, a 12 copy of the complaint (Docket No. 1), and a copy of this order 13 upon the following Defendants at Pelican Bay State Prison: 14 Correctional Officers (“CO”) T. Farley, R. Graham, J. Andersen 15 and R. Chisman. 16 17 2. In order to expedite the resolution of this case, the Court orders as follows: 18 a. No later than 91 days from the date of service, 19 Defendants shall file a motion for summary judgment or other 20 dispositive motion. 21 factual documentation and shall conform in all respects to 22 Federal Rule of Civil Procedure 56, and shall include as exhibits 23 all records and incident reports stemming from the events at 24 issue. The motion shall be supported by adequate If Defendant is of the opinion that this case cannot be 25 26 27 28 1 These same claims were brought in a prior action, Gibbs v. Farley, Case No. 13-cv-2114-TEH. The claims were dismissed without prejudice because Plaintiff filed the case prior to the exhaustion of administrative remedies. Docket No. 87 in 13-cv2114. 4 1 resolved by summary judgment, he shall so inform the Court prior 2 to the date his summary judgment motion is due. 3 with the Court shall be promptly served on the plaintiff. 4 b. All papers filed At the time the dispositive motion is served, 5 Defendants shall also serve, on a separate paper, the appropriate 6 notice or notices required by Rand v. Rowland, 154 F.3d 952, 953- 7 954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 8 1108, 1120 n. 4 (9th Cir. 2003). 9 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be See Woods v. Carey, 684 F.3d given at the time motion for summary judgment or motion to 11 United States District Court Northern District of California 10 dismiss for nonexhaustion is filed, not earlier); Rand at 960 12 (separate paper requirement). 13 c. Plaintiff's opposition to the dispositive motion, 14 if any, shall be filed with the Court and served upon Defendants 15 no later than thirty days from the date the motion was served 16 upon him. 17 - WARNING," which is provided to him pursuant to Rand v. Rowland, 18 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. 19 Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 20 Plaintiff must read the attached page headed "NOTICE - If Defendants file a motion for summary judgment claiming 21 that Plaintiff failed to exhaust his available administrative 22 remedies as required by 42 U.S.C. § 1997e(a), plaintiff should 23 take note of the attached page headed "NOTICE -- WARNING 24 (EXHAUSTION)," which is provided to him as required by Wyatt v. 25 Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 26 d. If Defendant wishes to file a reply brief, he shall 27 do so no later than fifteen days after the opposition is served 28 upon him. 5 1 e. 2 the reply brief is due. 3 unless the court so orders at a later date. 4 3. The motion shall be deemed submitted as of the date No hearing will be held on the motion All communications by Plaintiff with the court must be 5 served on defendant, or defendant’s counsel once counsel has been 6 designated, by mailing a true copy of the document to defendants 7 or defendants' counsel. 8 9 4. 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) is required before the parties 11 United States District Court Northern District of California 10 may conduct discovery. 12 5. It is Plaintiff's responsibility to prosecute this case. 13 Plaintiff must keep the court informed of any change of address 14 by filing a separate paper with the clerk headed “Notice of 15 Change of Address.” 16 in a timely fashion. 17 dismissal of this action for failure to prosecute pursuant to 18 Federal Rule of Civil Procedure 41(b). 19 20 He also must comply with the court's orders Failure to do so may result in the IT IS SO ORDERED. Dated: 04/14/2016 21 ________________________ THELTON E. HENDERSON United States District Judge 22 23 G:\PRO-SE\TEH\CR.16\Gibbs0731.serve.docx 24 25 26 27 28 6 1 2 3 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. 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 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. 19 20 21 22 23 24 25 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. 26 27 28 7

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