Pelacos v. Muniz et al

Filing 19

ORDER OF SERVICE re 18 Second Amended Complaint filed by Estaban Pelacos Dispositive Motion due by 8/14/2017.. Signed by Judge Thelton E. Henderson on 5/11/2017. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 5/11/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ESTABAN PELACOS, Case No. 16-cv-6666-TEH Plaintiff, 8 v. ORDER OF SERVICE 9 10 MUNIZ, et. al., Defendants. United States District Court Northern District of California 11 12 13 Plaintiff, a state prisoner, filed this pro se civil rights 14 action under 42 U.S.C. § 1983. 15 dismissed with leave to amend and Plaintiff has filed a second 16 amended complaint. The amended complaint was 17 I 18 Federal courts must engage in a preliminary screening of 19 cases in which prisoners seek redress from a governmental entity 20 or officer or employee of a governmental entity. 21 1915A(a). 22 the complaint, or any portion of the complaint, if the complaint 23 “is frivolous, malicious, or fails to state a claim upon which 24 relief may be granted,” or “seeks monetary relief from a 25 defendant who is immune from such relief.” 26 Pleadings filed by pro se litigants, however, must be liberally 27 construed. 28 Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 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 2 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must 3 allege two essential elements: 4 Constitution or laws of the United States was violated, and (2) 5 that the alleged violation was committed by a person acting under 6 the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 7 8 9 10 United States District Court Northern District of California 11 (1) that a right secured by the II Plaintiff alleges that Defendants were deliberately indifferent to his health and safety and he received inadequate medical care. The Constitution does not mandate comfortable prisons, but 12 neither does it permit inhumane ones. 13 U.S. 825, 832 (1994). 14 prison and the conditions under which he is confined are subject 15 to scrutiny under the Eighth Amendment. 16 509 U.S. 25, 31 (1993). 17 punishment," the Eighth Amendment places restraints on prison 18 officials, who may not, for example, use excessive force against 19 prisoners. 20 Amendment also imposes duties on these officials, who must 21 provide all prisoners with the basic necessities of life such as 22 food, clothing, shelter, sanitation, medical care and personal 23 safety. 24 County Dep't of Social Servs., 489 U.S. 189, 199-200 (1989); 25 Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). 26 See Farmer v. Brennan, 511 The treatment a prisoner receives in See Helling v. McKinney, In its prohibition of "cruel and unusual See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). See Farmer, 511 U.S. at 832; DeShaney v. Winnebago The A prison official violates the Eighth Amendment when two 27 requirements are met: (1) the deprivation alleged must be, 28 objectively, sufficiently serious, Farmer v. Brennan, 511 U.S. 2 1 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 2 (1991)), and (2) the prison official possesses a sufficiently 3 culpable state of mind, id. (citing Wilson, 501 U.S. at 297). 4 Deliberate indifference to serious medical needs violates 5 the Eighth Amendment's proscription against cruel and unusual 6 punishment. 7 v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 8 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 9 (9th Cir. 1997) (en banc). Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin A determination of "deliberate indifference" involves an examination of two elements: the 11 United States District Court Northern District of California 10 seriousness of the prisoner's medical need and the nature of the 12 defendant's response to that need. 13 Id. at 1059. A "serious" medical need exists if the failure to treat a 14 prisoner's condition could result in further significant injury 15 or the "unnecessary and wanton infliction of pain." 16 existence of an injury that a reasonable doctor or patient would 17 find important and worthy of comment or treatment; the presence 18 of a medical condition that significantly affects an individual's 19 daily activities; or the existence of chronic and substantial 20 pain are examples of indications that a prisoner has a "serious" 21 need for medical treatment. 22 Id. The Id. at 1059-60. A prison official is deliberately indifferent if he or she 23 knows that a prisoner faces a substantial risk of serious harm 24 and disregards that risk by failing to take reasonable steps to 25 abate it. 26 prison official must not only “be aware of facts from which the 27 inference could be drawn that a substantial risk of serious harm 28 exists,” but he “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 3 Id. The If a prison 1 official should have been aware of the risk, but was not, then 2 the official has not violated the Eighth Amendment, no matter how 3 severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 4 (9th Cir. 2002). “A difference of opinion between a prisoner- 5 patient and prison medical authorities regarding treatment does 6 not give rise to a § 1983 claim.” 7 1337, 1344 (9th Cir. 1981). 8 9 Franklin v. Oregon, 662 F.2d In the prior complaints the Court found that Plaintiff had presented sufficient allegations that correctional officers Griewank and Lower-Brodersen were deliberately indifferent to his 11 United States District Court Northern District of California 10 health and safety by not providing him with a cane and then 12 having him walk down a steep ramp where he fell and was injured. Defendants Washington 1 and Muniz who were named as 13 14 supervisors are dismissed from this action. 15 Bivens action – where masters do not answer for the torts of 16 their servants – the term ‘supervisory liability’ is a misnomer. 17 Absent vicarious liability, each Government official, his or her 18 title notwithstanding, is only liable for his or her own 19 misconduct.” 20 (finding under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 21 (2007), and Rule 8 of the Federal Rules of Civil Procedure, that 22 complainant-detainee in a Bivens action failed to plead 23 sufficient facts “plausibly showing” that top federal officials 24 “purposely adopted a policy of classifying post-September-11 “In a § 1983 or a Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 25 1 26 27 28 Plaintiff’s allegation that Defendant Washington made rude comments fails to state a claim. Allegations of verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). 4 1 detainees as ‘of high interest’ because of their race, religion, 2 or national origin” over more likely and non-discriminatory 3 explanations). 4 A supervisor may be liable under section 1983 upon a showing 5 of (1) personal involvement in the constitutional deprivation or 6 (2) a sufficient causal connection between the supervisor's 7 wrongful conduct and the constitutional violation. 8 Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v. 9 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). Henry A. v. A plaintiff must also show that the supervisor had the requisite state of mind to 11 United States District Court Northern District of California 10 establish liability, which turns on the requirement of the 12 particular claim — and, more specifically, on the state of mind 13 required by the particular claim — not on a generally applicable 14 concept of supervisory liability. 15 Student Alliance v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012). 16 Plaintiff has failed to present sufficient allegations against 17 the supervisor defendants. 18 Oregon State University Plaintiff also alleges that Dr. Fu provided inadequate 19 medical care in treating Plaintiff’s injuries. 20 also sufficient to proceed. 21 III 22 23 24 This claim is For the foregoing reasons, the Court hereby orders as follows: 1. The Clerk of the Court shall issue summons and the 25 United States Marshal shall serve, without prepayment of fees, a 26 copy of the second amended complaint (Docket No. 18), and a copy 27 of this order upon the following Defendants at Salinas Valley 28 State Prison: Correctional Officer J. Lower-Brodersen, 5 1 Correctional Officer B. Griewank and Dr. S. Fu. 2 Defendants are dismissed with prejudice. 3 4 2. The remaining In order to expedite the resolution of this case, the Court orders as follows: 5 a. No later than 91 days from the date of service, 6 Defendants shall file a motion for summary judgment or other 7 dispositive motion. 8 factual documentation and shall conform in all respects to 9 Federal Rule of Civil Procedure 56, and shall include as exhibits The motion shall be supported by adequate all records and incident reports stemming from the events at 11 United States District Court Northern District of California 10 issue. 12 resolved by summary judgment, he shall so inform the Court prior 13 to the date his summary judgment motion is due. 14 with the Court shall be promptly served on the plaintiff. If Defendant is of the opinion that this case cannot be 15 b. All papers filed At the time the dispositive motion is served, 16 Defendants shall also serve, on a separate paper, the appropriate 17 notice or notices required by Rand v. Rowland, 154 F.3d 952, 953- 18 954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 19 1108, 1120 n. 4 (9th Cir. 2003). 20 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be 21 given at the time motion for summary judgment or motion to 22 dismiss for nonexhaustion is filed, not earlier); Rand at 960 23 (separate paper requirement). 24 c. See Woods v. Carey, 684 F.3d Plaintiff's opposition to the dispositive motion, 25 if any, shall be filed with the Court and served upon Defendants 26 no later than thirty days from the date the motion was served 27 upon him. 28 - WARNING," which is provided to him pursuant to Rand v. Rowland, Plaintiff must read the attached page headed "NOTICE - 6 1 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. 2 Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 3 If Defendants file a motion for summary judgment claiming 4 that Plaintiff failed to exhaust his available administrative 5 remedies as required by 42 U.S.C. § 1997e(a), plaintiff should 6 take note of the attached page headed "NOTICE -- WARNING 7 (EXHAUSTION)," which is provided to him as required by Wyatt v. 8 Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 9 d. If Defendant wishes to file a reply brief, he shall do so no later than fifteen days after the opposition is served 11 United States District Court Northern District of California 10 upon him. 12 e. 13 the reply brief is due. 14 unless the court so orders at a later date. 15 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 16 served on defendant, or defendant’s counsel once counsel has been 17 designated, by mailing a true copy of the document to defendants 18 or defendants' counsel. 19 4. Discovery may be taken in accordance with the Federal 20 Rules of Civil Procedure. 21 Rule of Civil Procedure 30(a)(2) is required before the parties 22 may conduct discovery. 23 5. No further court order under Federal It is Plaintiff's responsibility to prosecute this case. 24 Plaintiff must keep the court informed of any change of address 25 by filing a separate paper with the clerk headed “Notice of 26 Change of Address.” 27 in a timely fashion. 28 dismissal of this action for failure to prosecute pursuant to He also must comply with the court's orders Failure to do so may result in the 7 1 2 3 Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. Dated: 5/11/2017 4 ________________________ THELTON E. HENDERSON United States District Judge 5 6 G:\PRO-SE\TEH\CR.16\Pelacos6666.srv.docx 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 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. 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. 15 16 17 18 19 20 21 22 23 24 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. 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. 25 26 27 28 9

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