Webb v. California Correctional Health Care Services et al

Filing 7

ORDER OF SERVICE. Habeas Answer or Dispositive Motion due by 11/6/2017. Signed by Judge Charles R. Breyer on 8/4/2017. (Attachments: # 1 Certificate/Proof of Service)(lsS, COURT STAFF) (Filed on 8/4/2017)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KEVIN L. WEBB, H99489,
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Plaintiff(s),
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v.
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CALIFORNIA CORRECTIONAL
HEALTH CARE SERVICES, et al.,

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Defendant(s).

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No. C 17-3066 CRB (PR)
ORDER OF SERVICE

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Plaintiff, a prisoner at the Correctional Training Facility (CTF) in Soledad,

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has filed a pro se complaint under 42 U.S.C. § 1983 alleging denial of

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recommended arthroscopic surgery, and now recommended hip replacement, for

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a degenerative torn labrum to his left hip. He seeks injunctive relief and money

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damages.

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which

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prisoners seek redress from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

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claims or dismiss 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 relief may be

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granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed, however.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated, and (2) that the alleged violation was committed by a

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person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48

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(1988).

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B.

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Legal Claims
Plaintiff alleges that California Correctional Health Care Services

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(CCHCS) and Dr. Bright have denied him recommended arthroscopic surgery for

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a degenerative torn labrum to his left hip since 2008. But after a specialist

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recently recommended hip replacement, rather than arthroscopic surgery, due to

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continued degeneration, Dr. Bright denied the hip replacement and recommended

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arthroscopic surgery. Plaintiff seeks an order compelling defendants to provide

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him the recommended hip replacement, and money damages for the prolonged

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denial/delay of recommended treatment.

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Deliberate indifference to serious medical needs violates the Eighth

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Amendment’s proscription against cruel and unusual punishment. Estelle v.

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Gamble, 429 U.S. 97, 104 (1976). A “serious medical need” exists if the failure

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to treat a prisoner’s condition could result in further significant injury or the

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“unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1992) (citing Estelle, 429 U.S. at 104), overruled in part on

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other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.

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1997) (en banc). A prison official is “deliberately indifferent” only if he knows

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that a prisoner faces a substantial risk of serious harm and disregards that risk by

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failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837

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(1994). Deliberate indifference may appear when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown in the way in

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which prison officials provide medical care. See McGuckin, 974 F.2d at 1062.

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Liberally construed, plaintiff’s allegations appear to state cognizable

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claims for relief under § 1983 for deliberate indifference to serious medical needs

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against CCHCS and Dr. Bright, and will be ordered served. See id.
CONCLUSION

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For the foregoing reasons and for good cause shown,
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The clerk shall issue summons and the United States Marshal shall

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serve, without prepayment of fees, copies of the complaint in this matter, all

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attachments thereto, and copies of this order on the following defendants:

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CCHCS, P.O. Box 588500, Elk Grove, CA 95758; and Dr. Bright, CTF Medical

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Staff, P.O. Box 686, Soledad, CA 93960-0686. The clerk also shall serve a copy

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of this order on plaintiff.

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2.

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follows:

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In order to expedite the resolution of this case, the court orders as

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No later than 90 days from the date of this order, defendants

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shall serve and file a motion for summary judgment or other dispositive motion.

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A motion for summary judgment must be supported by adequate factual

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documentation and must conform in all respects to Federal Rule of Civil

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Procedure 56, and must include as exhibits all records and incident reports

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stemming from the events at issue. A motion for summary judgment also must

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be accompanied by a Rand notice so that plaintiff will have fair, timely and

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adequate notice of what is required of him in order to oppose the motion. Woods

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v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand

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v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with

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motion for summary judgment). A motion to dismiss for failure to exhaust

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available administrative remedies (where such a motion, rather than a motion for

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summary judgment for failure to exhaust, is appropriate) must be accompanied

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by a similar notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012);

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Woods, 684 F.3d at 935 (notice requirement set out in Wyatt v. Terhune, 315

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F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 747

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F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with

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motion to dismiss for failure to exhaust available administrative remedies).

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If defendants are of the opinion that this case cannot be resolved by

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summary judgment or other dispositive motion, they shall so inform the court

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prior to the date their motion is due. All papers filed with the court shall be

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served promptly on plaintiff.

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b.

Plaintiff must serve and file an opposition or statement of

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non-opposition to the dispositive motion not more than 28 days after the motion

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is served and filed.

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c.

Plaintiff is advised that a motion for summary judgment

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under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your

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case. Rule 56 tells you what you must do in order to oppose a motion for

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summary judgment. Generally, summary judgment must be granted when there

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is no genuine issue of material fact – that is, if there is no real dispute about any

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fact that would affect the result of your case, the party who asked for summary

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judgment is entitled to judgment as a matter of law, which will end your case.

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When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply

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rely on what your complaint says. Instead, you must set out specific facts in

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declarations, depositions, answers to interrogatories, or authenticated documents,

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as provided in [current Rule 56(c)], that contradicts the facts shown in the

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defendant’s declarations and documents and show that there is a genuine issue of

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material fact for trial. If you do not submit your own evidence in opposition,

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summary judgment, if appropriate, may be entered against you. If summary

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judgment is granted, your case will be dismissed and there will be no trial. Rand

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v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).

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Plaintiff also is advised that a motion to dismiss for failure to exhaust
available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted,

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end your case, albeit without prejudice. You must “develop a record” and

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present it in your opposition in order to dispute any “factual record” presented by

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the defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108,

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1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show

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that you did exhaust your available administrative remedies before coming to

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federal court. Such evidence may include: (1) declarations, which are statements

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signed under penalty of perjury by you or others who have personal knowledge

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of relevant matters; (2) authenticated documents – documents accompanied by a

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declaration showing where they came from and why they are authentic, or other

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sworn papers such as answers to interrogatories or depositions; (3) statements in

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your complaint insofar as they were made under penalty of perjury and they show

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that you have personal knowledge of the matters state therein. In considering a

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motion to dismiss for failure to exhaust, the court can decide disputed issues of

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fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09.

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(The Rand and Wyatt/Stratton notices above do not excuse defendants’

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obligation to serve said notices again concurrently with motions to dismiss for

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failure to exhaust available administrative remedies and motions for summary

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judgment. Woods, 684 F.3d at 935.)

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d.

Defendants must serve and file a reply to an opposition not

more than 14 days after the opposition is served and filed.
e.

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The motion shall be deemed submitted as of the date the

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reply is due. No hearing will be held on the motion unless the court so orders at a

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later date.

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3.

Discovery may be taken in accordance with the Federal Rules of

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Civil Procedure. No further court order under Federal Rule of Civil Procedure

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30(a)(2) or Local Rule 16 is required before the parties may conduct discovery.

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4.

All communications by plaintiff with the court must be served on

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defendants, or defendants’ counsel once counsel has been designated, by mailing

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a true copy of the document to defendants or defendants’ counsel.

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5.

It is plaintiff’s responsibility to prosecute this case. Plaintiff must

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keep the court and all parties informed of any change of address and must comply

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with the court’s orders in a timely fashion. Failure to do so may result in the

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dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b).

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SO ORDERED.

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DATED:

August 4, 2017

CHARLES R. BREYER
United States District Judge

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