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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ESTABAN PELACOS,

Case No.

16-cv-6666-TEH

Plaintiff,
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v.

ORDER OF SERVICE

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MUNIZ, et. al.,
Defendants.

United States District Court
Northern District of California

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Plaintiff, a state prisoner, filed this pro se civil rights

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action under 42 U.S.C. § 1983.

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dismissed with leave to amend and Plaintiff has filed a second

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amended complaint.

The amended complaint was

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Federal courts must engage in a preliminary screening of

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cases in which prisoners seek redress from a governmental entity

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or officer or employee of a governmental entity.

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1915A(a).

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the complaint, or any portion of the complaint, if the complaint

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“is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a

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defendant who is immune from such relief.”

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Pleadings filed by pro se litigants, however, must be liberally

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construed.

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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);

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1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements:

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Constitution or laws of the United States was violated, and (2)

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that the alleged violation was committed by a person acting under

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the color of state law.

West v. Atkins, 487 U.S. 42, 48 (1988).

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United States District Court
Northern District of California

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(1) that a right secured by the

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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

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neither does it permit inhumane ones.

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U.S. 825, 832 (1994).

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prison and the conditions under which he is confined are subject

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to scrutiny under the Eighth Amendment.

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509 U.S. 25, 31 (1993).

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punishment," the Eighth Amendment places restraints on prison

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officials, who may not, for example, use excessive force against

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prisoners.

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Amendment also imposes duties on these officials, who must

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provide all prisoners with the basic necessities of life such as

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food, clothing, shelter, sanitation, medical care and personal

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safety.

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County Dep't of Social Servs., 489 U.S. 189, 199-200 (1989);

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Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).

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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

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requirements are met: (1) the deprivation alleged must be,

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objectively, sufficiently serious, Farmer v. Brennan, 511 U.S.
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825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298

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(1991)), and (2) the prison official possesses a sufficiently

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culpable state of mind, id. (citing Wilson, 501 U.S. at 297).

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Deliberate indifference to serious medical needs violates

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the Eighth Amendment's proscription against cruel and unusual

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punishment.

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v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136

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(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

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United States District Court
Northern District of California

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seriousness of the prisoner's medical need and the nature of the

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defendant's response to that need.

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Id. at 1059.

A "serious" medical need exists if the failure to treat a

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prisoner's condition could result in further significant injury

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or the "unnecessary and wanton infliction of pain."

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existence of an injury that a reasonable doctor or patient would

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find important and worthy of comment or treatment; the presence

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of a medical condition that significantly affects an individual's

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daily activities; or the existence of chronic and substantial

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pain are examples of indications that a prisoner has a "serious"

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need for medical treatment.

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Id.

The

Id. at 1059-60.

A prison official is deliberately indifferent if he or she

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knows that a prisoner faces a substantial risk of serious harm

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and disregards that risk by failing to take reasonable steps to

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abate it.

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prison official must not only “be aware of facts from which the

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inference could be drawn that a substantial risk of serious harm

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exists,” but he “must also draw the inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Id.

The

If a prison

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official should have been aware of the risk, but was not, then

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the official has not violated the Eighth Amendment, no matter how

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severe the risk.

Gibson v. County of Washoe, 290 F.3d 1175, 1188

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(9th Cir. 2002).

“A difference of opinion between a prisoner-

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patient and prison medical authorities regarding treatment does

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not give rise to a § 1983 claim.”

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1337, 1344 (9th Cir. 1981).

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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

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Northern District of California

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health and safety by not providing him with a cane and then

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having him walk down a steep ramp where he fell and was injured.
Defendants Washington 1 and Muniz who were named as

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supervisors are dismissed from this action.

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Bivens action – where masters do not answer for the torts of

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their servants – the term ‘supervisory liability’ is a misnomer.

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Absent vicarious liability, each Government official, his or her

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title notwithstanding, is only liable for his or her own

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misconduct.”

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(finding under Bell Atlantic Corp. v. Twombly, 550 U.S. 544

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(2007), and Rule 8 of the Federal Rules of Civil Procedure, that

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complainant-detainee in a Bivens action failed to plead

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sufficient facts “plausibly showing” that top federal officials

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“purposely adopted a policy of classifying post-September-11

“In a § 1983 or a

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)

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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).
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detainees as ‘of high interest’ because of their race, religion,

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or national origin” over more likely and non-discriminatory

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explanations).

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A supervisor may be liable under section 1983 upon a showing

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of (1) personal involvement in the constitutional deprivation or

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(2) a sufficient causal connection between the supervisor's

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wrongful conduct and the constitutional violation.

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Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v.

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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

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Northern District of California

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establish liability, which turns on the requirement of the

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particular claim — and, more specifically, on the state of mind

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required by the particular claim — not on a generally applicable

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concept of supervisory liability.

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Student Alliance v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012).

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Plaintiff has failed to present sufficient allegations against

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the supervisor defendants.

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Oregon State University

Plaintiff also alleges that Dr. Fu provided inadequate

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medical care in treating Plaintiff’s injuries.

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also sufficient to proceed.

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III

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This claim is

For the foregoing reasons, the Court hereby orders as
follows:
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The Clerk of the Court shall issue summons and the

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United States Marshal shall serve, without prepayment of fees, a

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copy of the second amended complaint (Docket No. 18), and a copy

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of this order upon the following Defendants at Salinas Valley

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State Prison:

Correctional Officer J. Lower-Brodersen,
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Correctional Officer B. Griewank and Dr. S. Fu.

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Defendants are dismissed with prejudice.

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2.

The remaining

In order to expedite the resolution of this case, the

Court orders as follows:

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a.

No later than 91 days from the date of service,

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Defendants shall file a motion for summary judgment or other

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dispositive motion.

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factual documentation and shall conform in all respects to

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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

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Northern District of California

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issue.

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resolved by summary judgment, he shall so inform the Court prior

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to the date his summary judgment motion is due.

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with the Court shall be promptly served on the plaintiff.

If Defendant is of the opinion that this case cannot be

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b.

All papers filed

At the time the dispositive motion is served,

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Defendants shall also serve, on a separate paper, the appropriate

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notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-

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954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d

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1108, 1120 n. 4 (9th Cir. 2003).

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934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be

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given at the time motion for summary judgment or motion to

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dismiss for nonexhaustion is filed, not earlier); Rand at 960

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(separate paper requirement).

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c.

See Woods v. Carey, 684 F.3d

Plaintiff's opposition to the dispositive motion,

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if any, shall be filed with the Court and served upon Defendants

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no later than thirty days from the date the motion was served

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upon him.

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- WARNING," which is provided to him pursuant to Rand v. Rowland,

Plaintiff must read the attached page headed "NOTICE -

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154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v.

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Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

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If Defendants file a motion for summary judgment claiming

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that Plaintiff failed to exhaust his available administrative

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remedies as required by 42 U.S.C. § 1997e(a), plaintiff should

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take note of the attached page headed "NOTICE -- WARNING

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(EXHAUSTION)," which is provided to him as required by Wyatt v.

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Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).

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d.

If Defendant wishes to file a reply brief, he shall

do so no later than fifteen days after the opposition is served

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United States District Court
Northern District of California

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upon him.

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e.

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the reply brief is due.

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unless the court so orders at a later date.

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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

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served on defendant, or defendant’s counsel once counsel has been

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designated, by mailing a true copy of the document to defendants

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or defendants' counsel.

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4.

Discovery may be taken in accordance with the Federal

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Rules of Civil Procedure.

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Rule of Civil Procedure 30(a)(2) is required before the parties

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may conduct discovery.

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5.

No further court order under Federal

It is Plaintiff's responsibility to prosecute this case.

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Plaintiff must keep the court informed of any change of address

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by filing a separate paper with the clerk headed “Notice of

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Change of Address.”

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in a timely fashion.

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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

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Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
Dated: 5/11/2017

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________________________
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\CR.16\Pelacos6666.srv.docx

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United States District Court
Northern District of California

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United States District Court
Northern District of California

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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.

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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.

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