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)

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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 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

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