Briggs v. Baker et al

Filing 8

ORDER OF SERVICE; INSTRUCTIONS TO CLERK. Signed by Judge William Alsup on 12/4/2017. (Attachments: # 1 Certificate/Proof of Service)(afmS, COURT STAFF) (Filed on 12/4/2017)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 11 RONNIE LEE BRIGGS, Plaintiff, 12 ORDER OF SERVICE; INSTRUCTIONS TO CLERK v. 13 14 No. C 17-6511 WHA (PR) ARRON K. BAKER; S. GLASPER; BRANDON BUTTS; 15 Defendants. / 16 17 INTRODUCTION 18 Plaintiff, an inmate at the West County Jail in Richmond, California, filed this pro se 19 civil rights case under 42 U.S.C. 1983 against three officers of the City of Pittsburg Police 20 Department. He is granted leave to proceed in forma pauperis in a separate order. For the 21 reasons discussed below, the complaint is ordered served upon 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 10 do. . . . Factual allegations must be enough to raise a right to relief above the speculative level." 11 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) that 16 the alleged deprivation was committed by a person acting under the color of state law. West v. 17 Atkins, 487 U.S. 42, 48 (1988). 18 B. 19 20 21 LEGAL CLAIMS Plaintiff’s allegations, when liberally construed, state a cognizable claim for relief against defendants under Section 1983 for using excessive force against him during his arrest. CONCLUSION 22 For the reasons set out above, it is hereby ordered as follows: 23 1. The clerk shall issue summons and the United States Marshal shall serve, without 24 prepayment of fees, a copy of the complaint with all attachments thereto, and a copy of this 25 order upon Officers Arron K. Baker, S. Glasper, and Brandon Butts of the City of 26 Pittsburg Police Department. A courtesy copy of the complaint with attachments and this 27 order shall also be mailed to the City Attorney’s Office for the City of Pittsburg, California. 28 2 1 2 3 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: 4 a. No later than 91 days from the date this order is filed, defendant shall file a 5 motion for summary judgment or other dispositive motion. If defendant is of the opinion that 6 this case cannot be resolved by summary judgment, he shall so inform the court prior to the date 7 the summary judgment motion is due. All papers filed with the court shall be promptly served 8 on the plaintiff. 9 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 10 court and served upon defendant no later than 28 days from the date of service of the motion. 11 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to 12 him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and 13 Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 14 15 16 17 18 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. e. Along with his motion, defendant shall proof that they served plaintiff the 19 Rand warning at the same time they served him with their motion. Failure to do so will result in 20 the summary dismissal of their motion. 21 4. All communications by the plaintiff with the court must be served on defendant, or 22 defendant’s counsel once counsel has been designated, by mailing a true copy of the document 23 to defendant or defendant’s counsel. 24 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 25 further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is 26 required before the parties may conduct discovery. 27 6. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 28 3 1 informed of any change of address and must comply with the court's orders in a timely fashion. 2 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 3 Federal Rule of Civil Procedure 41(b). 4 IT IS SO ORDERED. 5 Dated: December 6 4 , 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 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 dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material 7 fact--that is, if there is no real dispute about any fact that would affect the result of your case, the 8 party who asked for summary judgment is entitled to judgment as a matter of law, which will 9 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 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 granted, 16 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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