Covert v. Graham et al

Filing 42

ORDER re 1 Complaint filed by James W. Covert. Signed by Judge ARMSTRONG on 3/13/12. (lrc, COURT STAFF) (Filed on 3/13/2012)

1
IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5
6
7
8

JAMES W. COVERT

)
)
Plaintiff,
)
v.
)
)
D. GRAHAM, et al.,
)
)
Defendants.
)
)
____________________________________ )

No. C 06-6626 SBA (PR)
ORDER DIRECTING PARTIES TO FILE
DISPOSITIVE MOTIONS, STATEMENTS
THAT CASE CANNOT BE RESOLVED BY
DISPOSITIVE MOTION, OR NOTICES OF
INTENT TO PARTICIPATE IN
SETTLEMENT CONFERENCE

9
Plaintiff James W. Covert, a state prisoner, filed a pro se civil rights action under 42 U.S.C.

11
For the Northern District of California

United States District Court

10

§ 1983 alleging that prison officials were deliberately indifferent to his health and safety during his

12

incarceration in administrative segregation ("ad seg") at San Quentin State Prison. Plaintiff alleged,

13

inter alia, that in January 2005, Defendants purposely deprived him of his personal shoes, instead

14

provided him with size 12 shoes when he wore a size 9 ½. He complained to prison officials about

15

the wrong shoe size for months, to no avail. On April 16, 2005, Plaintiff sustained serious injuries

16

after one of his shoes slipped off, causing him to fall down several flights of stairs. On September 1,

17

2009, the Court issued an order serving Plaintiff's cognizable claim of deliberate indifference to his

18

health and safety against Defendants Harrison and Graham.

19
20
21
22
23
24

In an Order dated March 30, 2010, the Court granted Defendants' motion to dismiss
Plaintiff's complaint for failure to exhaust his administrative remedies, as required by 42 U.S.C.
§ 1997e(a).
Plaintiff appealed and, on January 25, 2012, the Ninth Circuit Court of Appeals vacated this
Court's dismissal order. The Ninth Circuit held that Defendants had not met their burden of proving
that Plaintiff's action should be dismissed for failure to exhaust administrative remedies. In vacating

25
this Court's judgment, the Ninth Circuit stated:
26
27
28

Covert stated in his sworn declaration in opposition to the motion to dismiss that he
attempted to file appeals at the second level of review for his May 6, 2005
grievance, and that these appeals were never properly processed. Defendants relied
on a declaration by appeals coordinator Padilla that does not explain the prison's

1
2
3
4
5
6

record keeping methods or otherwise address how attempted inmate appeals are
tracked or handled. See [Wyatt v. Terhune, 315 F.3d 1108,] 1116-17, 1119-20
[(9th Cir. 2003)] (an incomplete record is inadequate to establish nonexhaustion).
Accordingly, we vacate the judgment and remand for further proceedings.
Covert v. Graham, et al., No. 10-16134, Memorandum at 2. The Ninth Circuit issued its mandate on
February 16, 2012.
For the foregoing reasons, this Court's March 30, 2010 judgment was vacated and remanded.

whole or in part by dispositive motion, and file a dispositive motion, if appropriate. Plaintiff may

9

also file his own motion for summary judgment, if appropriate. In lieu of a dispositive motion, the

10

Court directs each party to file a notice of intent to participate in a settlement conference in order to

11
For the Northern District of California

The Court, therefore, directs Defendants to state whether they believe the case can be resolved in

8

United States District Court

7

resolve this case.
CONCLUSION

12
13

For the foregoing reasons, the Court orders as follows:

14

1.

No later than forty-five (45) days of the date of this Order, Defendants shall file

15

either a dispositive motion or a statement that they believe the case cannot be resolved by way of a

16

dispositive motion. If Defendants file a dispositive motion, Plaintiff may file an opposition to the

17

motion no later than forty-five (45) days of the date Defendants' motion is filed. Defendants shall

18

file a reply brief no later than fifteen (15) days of the date Plaintiff's opposition is filed.

19
20
21
22
23
24

2.

Plaintiff may also file his own motion for summary judgment, if appropriate, no later

than forty-five (45) days of the date of this Order. Defendants' opposition shall be due no later than
forty-five (45) days after Plaintiff's motion is filed, and Plaintiff shall file a reply brief no later than
fifteen (15) days of the date Defendants' opposition is filed.
3.

Plaintiff is reminded of his obligation to produce evidence in support his claims for

relief in order to either prevail on his own motion for summary judgment or defeat Defendants'

25
motion for summary judgment. He may not rely on the allegations of his complaints. Evidence may

26
27
28

take the form of affidavits (statements of fact within the individual's personal knowledge, that are
signed and verified as true under penalty of perjury) or documentary evidence that is authenticated by

2

1
2

an appropriate affidavit, see Fed. R. Evid. 901-03
4.

If the parties believe a settlement can be reached, the participating parties should

3

inform the Court by filing Notices of Intent to Participate in Settlement Conference no later than

4

forty-five (45) days of the date of this Order, stating their preference to participate in a settlement

5

conference in lieu of filing a dispositive motion.

6
7
8
9

11
For the Northern District of California

United States District Court

10

5.

It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

informed of any change of address and must comply with the Court's orders in a timely fashion.
Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal
Rule of Civil Procedure 41(b).
6.

Extensions of time are not favored, though reasonable extensions will be granted.

Any motion for an extension of time must be filed no later than ten (10) days prior to the deadline

12
sought to be extended.

13
14
15

IT IS SO ORDERED.
DATED: _3/13/12

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
G:\PRO-SE\SBA\CR.06\Covert6626.remand.frm

3

1
2
3

UNITED STATES DISTRICT COURT

4

FOR THE

5

NORTHERN DISTRICT OF CALIFORNIA

6
7
8

JAMES WILLIAM COVERT,

9

11
For the Northern District of California

United States District Court

10

Case Number: CV06-06626 SBA

Plaintiff,

CERTIFICATE OF SERVICE

v.
D. GRAHAM et al,

12
Defendant.
13
14
15
16
17
18

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on March 13, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

19
20
21
22
23

James W. Covert D-86333
Pleasant Valley State Prison
P.O. Box 8503
Coalinga, CA 93210
Dated: March 13, 2012
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

24
25
26
27
28
G:\PRO-SE\SBA\CR.06\Covert6626.remand.frm

4