Brass v. Taylor et al

Filing 7

ORDER OF SERVICE. Signed by Magistrate Judge Jacqueline Scott Corley on 11/15/2016. (ahm, COURT STAFF) (Filed on 11/15/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ISAAC LAMONT BRASS, 7 Plaintiff, 8 ORDER OF SERVICE v. 9 J. TAYLOR, et al., 10 Defendants. 11 United States District Court Northern District of California Case No.16-cv-06196-JSC 12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights complaint under 42 14 15 U.S.C. § 1983 against guards at Pelican Bay State Prison, where Plaintiff was formerly housed.1 16 Plaintiff’s application to proceed in forma pauperis is granted in a separate order. For the reasons 17 explained below, the complaint is ordered served upon Defendants. STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 21 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 22 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 23 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 24 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 25 F.2d 696, 699 (9th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 27 1 28 Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 2.) 1 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 2 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 3 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to 4 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 5 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 6 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 7 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 8 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to 9 state a claim for relief that is plausible on its face.” Id. at 1974. 10 United States District Court Northern District of California 11 12 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). LEGAL CLAIMS 14 15 16 17 Plaintiff alleges that on November 18, 2015, Defendants J. Taylor, K. Meyer, A. Maylin, and J. Franz, all Correctional Officers at Pelican Bay State Prison, grabbed his arms, pulled him to the ground, slammed his face and stomach into concrete, kneed him in the face, sides and lower torso, and bent and twisted his arms. Plaintiff also alleges that during this incident, he offered no 18 threat, aggression or resistance. When liberally construed, Plaintiff’s allegations state a 19 cognizable claim for relief under Section 1983 against Defendants for using excessive force in 20 violation of his right under the Eighth Amendment to be free from cruel and unusual punishment. 21 CONCLUSION 22 1. The Clerk shall issue a summons and Magistrate Judge jurisdiction consent form 23 and the United States Marshal shall serve, without prepayment of fees, the summons, Magistrate 24 Judge jurisdiction consent form, a copy of the complaint with attachments, and a copy of this 25 order on J. Taylor, K. Meyer, A. Maylin, and J. Franz, at Pelican Bay State Prison. 26 27 The Clerk shall also mail a courtesy copy of the Magistrate Judge jurisdiction consent form, the complaint with all attachments and a copy of this order to the California Attorney 28 2 1 General’s Office. 2 2. Defendants shall complete and file the Magistrate Judge jurisdiction consent form 3 within the deadline provided on the form. They shall also file an answer in accordance with the 4 Federal Rules of Civil Procedure. 3. 5 To expedite the resolution of this case: a. No later than 91 days from the date this order is issued, Defendants shall file a 6 7 motion for summary judgment or other dispositive motion. The motion shall be supported by 8 adequate factual documentation and shall conform in all respects to Federal Rule of Civil 9 Procedure 56, and shall include as exhibits all records and incident reports stemming from the 10 United States District Court Northern District of California 11 12 events at issue. If Defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the Court prior to the date the summary judgment motion is due. All papers filed with the Court shall be promptly served on Plaintiff. b. At the time the dispositive motion is served, Defendants shall also serve, on a 13 14 15 separate paper, the appropriate notice required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012). c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 16 17 Court and served upon Defendants no later than 28 days from the date the motion is filed. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him 18 pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc). 19 d. Defendants shall file a reply brief no later than 14 days after the opposition is 20 filed. 21 22 23 24 25 26 27 e. 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. 4. All communications by Plaintiff with the Court must be served on Defendants or their counsel once counsel has been designated, by mailing a true copy of the document to Defendants or their counsel. 5. 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 28 3 1 2 parties may conduct discovery. 6. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 3 informed of any change of address by filing a separate paper with the clerk headed “Notice of 4 Change of Address.” He also must comply with the Court's orders in a timely fashion. Failure to 5 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 6 Civil Procedure 41(b). Reasonable requests for an extension of a deadline will be allowed upon a 7 showing of good cause if the request is filed prior to the deadline. 8 9 IT IS SO ORDERED. Dated: November 15, 2016 10 United States District Court Northern District of California 11 JACQUELINE SCOTT CORLEY United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 NOTICE -- WARNING (SUMMARY JUDGMENT) 1 2 If Defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 United States District Court Northern District of California 11 12 13 14 15 16 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 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. 17 18 19 20 21 22 23 24 25 26 27 28 5 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ISAAC LAMONT BRASS, Case No. 16-cv-06196-JSC Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 J. TAYLOR, et al., Defendants. United States District Court Northern District of California 11 12 13 14 15 16 17 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 November 15, 2016, 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. 18 19 20 Isaac Lamont Brass ID: AS6030 California State Prison - Los Angeles County Facility B, Building 1, Bed 146 P.O. Box 8457 Lancaster, CA 93539 21 22 Dated: November 15, 2016 23 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Ada Means, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 6

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