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)

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