Allen v. Nurse Practitioner Tyler et al

Filing 7

ORDER OF SERVICE; INSTRUCTIONS TO CLERK. Habeas Answer or Dispositive Motion due by 8/11/2017.. Signed by Judge William Alsup on 5/10/17. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 5/11/2017)

1
2
3
4
5
IN THE UNITED STATES DISTRICT COURT
6
FOR THE NORTHERN DISTRICT OF CALIFORNIA

7
8
9

MICHAEL ALLEN,
Plaintiff,

ORDER OF SERVICE;
INSTRUCTIONS TO CLERK

v.

11
For the Northern District of California

United States District Court

10

12

No. C 17-0523 WHA (PR)

N.P. TYLER; NURSE TIM; NURSE
MARK; DR. GAMBOA,

13
Defendants.
/

14
15

INTRODUCTION
16
Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”), filed this civil rights case
17
under 42 U.S.C. 1983 alleging that Defendants — who all work at SVSP — were deliberately
18
indifferent to his medical needs. He is granted leave to proceed in forma pauperis in a separate
19
order. For the reasons discussed below, the complaint is ordered served upon defendants.
20
ANALYSIS
21
A.

STANDARD OF REVIEW

22
Federal courts must engage in a preliminary screening of cases in which prisoners seek
23
redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
24
1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims
25
which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
26
monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro
27
se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699
28
(9th Cir. 1990).

1

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the

statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds

4

upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).

5

Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

6

plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than

7

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

8

do. . . . Factual allegations must be enough to raise a right to relief above the speculative

9

level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

10

complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id.

11
For the Northern District of California

claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the

3

United States District Court

2

at 1974.

12

To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements:

13

(1) that a right secured by the Constitution or laws of the United States was violated, and (2)

14

that the alleged deprivation was committed by a person acting under the color of state law.

15

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

16

B.

LEGAL CLAIMS

17

Plaintiff alleges that he is a disabled inmate confined to a wheelchair. Defendants

18

Defendant Nurse Tim confiscated his wheelchair while showering, which forced him to crawl to

19

his cell. Defendants Nurse Practitioner Tyler and Nurse Mark refused to give him back his

20

wheelchair or otherwise assist him. He could not get up, and despite several requests for

21

medical assistance, he remained on the floor of his cell for the rest of the day and overnight

22

until other prison personnel eventually took him to the hospital. He suffered from pain, cold,

23

and vomiting blood when he was lying on the floor of his cell. After the wheelchair was

24

returned to plaintiff, defendant Gamboa, the Chief Medical Officer at SVSP, heard plaintiff’s

25

staff complaint against Tyler and in doing so once again confiscated plaintiff’s wheelchair. The

26

wheelchair was later returned to plaintiff when he filed an administrative grievance about

27

Gamboa’s decision. When liberally construed, plaintiff’s allegations state cognizable claims

28
2

1

against the four defendants for deliberate indifference to his medical needs in violation of

2

plaintiff’s Eighth Amendment rights.

3
4

CONCLUSION

5

For the reasons set out above, it is hereby ordered as follows:

6

1. The clerk shall issue summons and the United States Marshal shall serve, without

7

prepayment of fees, a copy of the complaint with all attachments thereto, and a copy of this

8

order upon defendants Nurse Practitioner Tyler, Nurse Mark, Nurse Tim, and Doctor

9

Gamboa at Salinas Valley State Prison. A courtesy copy of the complaint with attachments

11
For the Northern District of California

United States District Court

10

12
13

and this order shall also be mailed to the California Attorney General’s Office.
2. Defendant shall file an answer in accordance with the Federal Rules of Civil
Procedure.
3. In order to expedite the resolution of this case:

14

a. No later than 91 days from the date this order is filed, defendant shall file a

15

motion for summary judgment or other dispositive motion. If defendant is of the opinion that

16

this case cannot be resolved by summary judgment, he shall so inform the court prior to the date

17

the summary judgment motion is due. All papers filed with the court shall be promptly served

18

on the plaintiff.

19

b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the

20

court and served upon defendant no later than 28 days from the date of service of the motion.

21

Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to

22

him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and

23

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

24
25
26
27

c. Defendant shall file a reply brief no later than 14 days after the date of
service of the opposition.
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.

28
3

1

e. Along with his motion, defendant shall proof that they served plaintiff the

2

Rand warning at the same time they served him with their motion. Failure to do so will result in

3

the summary dismissal of their motion.

4

4. All communications by the plaintiff with the court must be served on defendant, or

5

defendant’s counsel once counsel has been designated, by mailing a true copy of the document

6

to defendant or defendant’s counsel.

7

5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

8

No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is

9

required before the parties may conduct discovery.
6. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court

11
For the Northern District of California

United States District Court

10

informed of any change of address and must comply with the court's orders in a timely fashion.

12

Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

13

Federal Rule of Civil Procedure 41(b).

14

IT IS SO ORDERED.

15
Dated: May
16

10

, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

17
18
19
20
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