Corser v. Schreeder et al

Filing 6

ORDER OF SERVICE. Signed by Judge William Alsup on 5/4/17. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 5/4/2017)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 GREG CORSER, Plaintiff, 13 ORDER OF SERVICE v. 11 For the Northern District of California United States District Court 10 12 No. C 16-7135 WHA (PR) HANK SCHREEDER; MICHAEL DATZOLD; IAN H. BERNER; OFFICER WOODS; M. SPEDIACCI; JENEANE R. KUCKER, 14 Defendants. / 15 16 INTRODUCTION 17 Plaintiff, an inmate at the Sonoma County Jail, filed this civil rights case under 42 18 U.S.C. 1983 against officers and employees of the Santa Rosa Police Department for using 19 excessive force during the course of his arrest. He is granted leave to proceed in forma pauperis 20 in a separate order. For the reasons discussed below, the complaint is ordered served upon 21 defendants. 22 ANALYSIS 23 A. STANDARD OF REVIEW 24 Federal courts must engage in a preliminary screening of cases in which prisoners seek 25 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 26 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 27 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 28 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro 1 se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 2 (9th Cir. 1990). 3 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 4 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 5 statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds 6 upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). 7 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 8 plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than 9 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative 11 For the Northern District of California United States District Court 10 level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A 12 complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. 13 at 1974. 14 To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements: 15 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) 16 that the alleged deprivation was committed by a person acting under the color of state law. 17 West v. Atkins, 487 U.S. 42, 48 (1988). 18 B. LEGAL CLAIMS 19 Plaintiff alleges that after a chase by officers of the Santa Rosa Police Department, he 20 got out of his truck, lay down flat on his stomach on the ground with his arms spread and told 21 the officers he was not resisting. He alleges that defendant Officer Michael Datzold sicced a 22 police dog on plaintiff, and the dog bit plaintiff on the arm and the side. Defendant Officer Ian 23 H. Berner stood over him while he was being bit and told him to stop resisting. Defendants 24 Officer Woods and Detective M. Spediacci were present and failed to intervene. When liberally 25 construed, these allegations state a cognizable claim against defendants Datzold, Berner, Woods 26 and Spediacci for using excessive force during plaintiff’s arrest in violation of his Fourth 27 Amendment rights. 28 2 1 The only allegation against defendant Hank Schreeder is that he is the Chief of Police, 2 and the only allegation against defendant Jeneane R. Kucker is that she is a supervisor. These 3 allegations are not sufficient to state a cognizable claim against them because supervisors are 4 not liable for the actions of their subordinates under Section 1983. See Taylor v. List, 880 F.2d 5 1040, 1045 (9th Cir. 1989) (there is no respondeat superior liability under Section 1983). 6 CONCLUSION 7 For the reasons set out above, it is hereby ordered as follows: 8 1. The claims against defendants Schreeder and Kucker are DISMISSED. 9 2. The clerk shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the complaint with all attachments thereto, and a copy of this 11 For the Northern District of California United States District Court 10 order upon defendants Officer Michael Datzold, Officer Woods, Detective M. Spediacci, and 12 Officer Ian H. Berner at the Santa Rosa Police Department. A courtesy copy of the 13 complaint with attachments and this order shall also be mailed to the Santa Rosa City 14 Attorney’s Office. 15 16 17 18 2. Defendants shall file an answer in accordance with the Federal Rules of Civil Procedure. 3. In order to expedite the resolution of this case: a. No later than 91 days from the date this order is filed, defendants shall file a 19 motion for summary judgment or other dispositive motion. If defendants are of the opinion that 20 this case cannot be resolved by summary judgment, he shall so inform the court prior to the date 21 the summary judgment motion is due. All papers filed with the court shall be promptly served 22 on the plaintiff. 23 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 24 court and served upon defendant no later than 28 days from the date of service of the motion. 25 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to 26 him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and 27 Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 28 3 1 2 c. Defendants shall file a reply brief no later than 14 days after the date of service of the opposition. 3 4 d. 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. 5 e. Along with his motion, defendants shall file proof that they served plaintiff 6 the Rand warning at the same time they served him with their motion. Failure to do so will 7 result in the summary dismissal of their motion. 8 9 defendant’s counsel once counsel has been designated, by mailing a true copy of the document to defendant or defendant’s counsel. 11 For the Northern District of California United States District Court 10 4. All communications by the plaintiff with the court must be served on defendant, or 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 12 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is 13 required before the parties may conduct discovery. 14 6. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 15 informed of any change of address and must comply with the court's orders in a timely fashion. 16 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 17 Federal Rule of Civil Procedure 41(b). 18 IT IS SO ORDERED. 19 Dated: May 20 4 , 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 4 1 2 NOTICE -- WARNING (SUMMARY JUDGMENT) If defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. fact--that is, if there is no real dispute about any fact that would affect the result of your case, 8 the party who asked for summary judgment is entitled to judgment as a matter of law, which 9 will end your case. When a party you are suing makes a motion for summary judgment that is 10 properly supported by declarations (or other sworn testimony), you cannot simply rely on what 11 For the Northern District of California Generally, summary judgment must be granted when there is no genuine issue of material 7 United States District Court 6 your complaint says. Instead, you must set out specific facts in declarations, depositions, 12 answers to interrogatories, or authenticated documents, as provided in [current Rule 56(c)], that 13 contradict the facts shown in the defendant's declarations and documents and show that there is 14 a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, 15 summary judgment, if appropriate, may be entered against you. If summary judgment is 16 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

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