Ramirez v. Tilton et al

Filing 20

ORDER. Signed by Judge ARMSTRONG on 4/23/10. (lrc, COURT STAFF) (Filed on 4/26/2010)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. JAMES TILTON, et al.,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JUAN VILLA RAMIREZ, Plaintiff, No. C 07-04681 SBA (PR) ORDER DIRECTING UNITED STATES MARSHAL TO SERVE DEFENDANTS SQSP MEDICAL STAFF; AND SETTING BRIEFING SCHEDULE /

Defendants.

Plaintiff, a California prisoner incarcerated at San Quentin State Prison (SQSP), filed the present pro se civil rights action pursuant to 42 U.S.C. § 1983 in which he asserted three claims for relief against twenty-one Defendants, all officials and employees at SQSP and the California Department of Corrections and Rehabilitation (CDCR). He seeks monetary damages and injunctive relief. In an Order dated March 5, 2010, the Court screened Plaintiff's complaint. The Court found Plaintiff's allegation that SQSP medical staff failed to provide adequate medical treatment (for his hemangiomas) stated a cognizable deliberate indifference claim against the following Defendants, who are members of the SQSP medical staff: Defendants SQSP Physicians Sayer, Poluzza, Kholsla, Tim Belavich and Donald Calvo; as well as SQSP Medical Technical Assistants (MTAs) Hill-Culpepper, Guildersleeves, Morrow and Terranu. Plaintiff's claims concerning the handling of his appeals were dismissed with prejudice. Plaintiff's claims under Title II of the Americans with Disabilities Act of 1990 (ADA) and § 504 of the Rehabilitation Act of 1973 against Defendants who are individual officers were dismissed with prejudice. The Court noted that if Plaintiff named SQSP and the CDCR as Defendants, then his ADA and Section 504 claims against these public entities were dismissed with leave to amend. The Court stated, "Plaintiff may reassert the claims in an amendment to the complaint if he can in good faith allege that he is an individual with a disability under the federal statutes, that the prison discriminated against him on the basis of his 'disability,' and if he names the proper Defendants." (Mar. 5, 2010 Order at 5.) Finally, the Court noted that none of the Defendants had been served; therefore, the Court directed Plaintiff, who paid the filing

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fee in this matter, to "either provide the Court with proof of service of the summons and complaint upon the Defendants against whom he alleges his deliberate indifference to serious medical needs claim, or otherwise show cause why the complaint should not be dismissed without prejudice as to each unserved Defendant pursuant to Rule 4(m) of the Federal Rules of Civil Procedure." (Id. at 7.) Plaintiff was also directed to file an amendment to the complaint containing amended ADA and Section 504 claims against SQSP and the CDCR. Plaintiff was given thirty days to: (1) file his amendment to the complaint; and (2) show proof that he has served those Defendants against whom he alleges his deliberate indifference to serious medical needs claim, or show cause why such Defendants should not be dismissed from this action without prejudice. In an Order dated April 15, 2010, the Court granted Plaintiff a brief extension of time to respond to the Court's March 5, 2010 Order. The Court stated, "The time in which Plaintiff may: (1) file his amendment to the complaint; and (2) either provide the Court with proof of service on those Defendants against whom he alleges his deliberate indifference to serious medical needs claim, or show cause why such Defendants should not be dismissed from this action without prejudice, will be extended up to and including May 10, 2010." (Apr. 15, 2010 at 2 (emphasis in original).) On April 20, 2010, the Court received a letter from Michael R. Snedeker and Lisa Short, the attorneys who represented Plaintiff "on the automatic appeal of his death sentence." (Apr. 20, 2010 Letter at 1.) Mr. Snedeker states: Ms. Short paid the filing fee because [Plaintiff] was not able to complete the requisite papers in time (he is locked down because of an assessment by the prison that he is a gang member), but in December of 2007, [Plaintiff] filed a motion to proceed in forma pauperis [IFP], together with a supporting declaration. (Apr. 20, 2010 Letter from Michael R. Snedeker at 1.) Mr. Snedeker asks the court to rule on Plaintiff's IFP motion, and to amend its March 5, 2010 Order requiring Plaintiff to provide the Court with proof of service of the summons and complaint upon Defendants. Although the record reflects that Plaintiff has paid the requisite filing fee, Mr. Snedeker correctly points out that Plaintiff originally moved to proceed IFP under 28 U.S.C. § 1915 as to all other aspects of this case. Good cause shown, the motion to proceed IFP is GRANTED, and the

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United States Marshal shall serve those Defendants against whom Plaintiff alleges his deliberate indifference to serious medical needs claim, as directed below. The parties are directed to abide by the new briefing schedule outlined below. The Court notes, however, that Plaintiff is directed to abide by the May 10, 2010 deadline for filing his amendment to the complaint. CONCLUSION For the foregoing reasons, 1. Although Plaintiff has paid the requisite filing fee, the Court GRANTS Plaintiff's

motion to proceed IFP under 28 U.S.C. § 1915 as to all other aspects of this case; however, no further filing is due because it has been paid in full. 2. Pursuant to the Court's April 15, 2010 Order, Plaintiff's amendment to the complaint

is due on May 10, 2010. His amendment to the complaint should contain amended ADA and Section 504 claims against SQSP and the CDCR as set forth above in Sections II(B)(3) of the Court's March 5, 2010 Order. (Plaintiff shall resubmit only his amended ADA and Section 504 claims and not the entire complaint.) The failure to do so will result in the dismissal without prejudice of his ADA and Section 504 claims against SQSP and the CDCR. 3. The Clerk of the Court shall issue summons and the United States Marshal shall

serve, without prepayment of fees, a copy of the original complaint (docket no. 1) in this matter, and a copy of this Order upon: SQSP Physicians Sayer, Poluzza and Kholsla; as well as SQSP MTAs Hill-Culpepper, Guildersleeves, Morrow and Terranu at SQSP; former SQSP Physician Tim Belavich at California State Prison - Los Angeles County in Lancaster, California; and former SQSP Physician Donald Calvo, whose address shall be provided in an addendum, which shall be filed under seal.1 The Clerk shall also mail copies of these documents to the Attorney General of the State of California. Additionally, the Clerk shall serve a copy of this Order on Plaintiff. 4. In order to expedite the resolution of this case, the Court orders as follows: a. Defendants shall answer the complaint in accordance with the Federal Rules

of Civil Procedure. In addition, no later than thirty (30) days from the date their answer is due,

The litigation coordinator at SQSP informed Clerk's Office staff of Defendants Belavich and Calvo's last known addresses.
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Defendants shall file a motion for summary judgment or other dispositive motion. The motion shall be supported by adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56. If Defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the Court prior to the date their summary judgment motion is due. All papers filed with the Court shall be promptly served on Plaintiff. b. Plaintiff's opposition to the dispositive motion shall be filed with the Court

and served on Defendants no later than thirty (30) days after the date on which Defendants' motion is filed. The Ninth Circuit has held that the following notice should be given to plaintiffs: The Defendant has made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the Defendants's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted [in favor of the Defendant], your case will be dismissed and there will be no trial. See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this case, he must be prepared to produce evidence in support of those allegations when he files his opposition to Defendants' dispositive motion. Such evidence may include sworn declarations from himself and other witnesses to the incident, and copies of documents authenticated by sworn declaration. Plaintiff is advised that if he fails to submit declarations contesting the version of the facts contained in Defendants' declarations, Defendants' version may be taken as true and the case may be decided in Defendants' favor without a trial. Plaintiff will not be able to avoid summary judgment simply by repeating the allegations of his 4

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complaint. c. If Defendants wish to file a reply brief, they shall do so no later than fifteen

(15) days after the date Plaintiff's opposition is filed. 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. 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

Leave of Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose Plaintiff and any other necessary witnesses confined in prison. 6. All communications by Plaintiff with the Court must be served on Defendants, or

their counsel once counsel has been designated, by mailing a true copy of the document to Defendants or their counsel. 7. 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). 8. Extensions of time are not favored, though reasonable extensions will be granted.

However, the party making a motion for an extension of time is not relieved from his or her duty to comply with the deadlines set by the Court merely by having made a motion for an extension of time. The party making the motion must still meet the deadlines set by the Court until an order addressing the motion for an extension of time is issued. Any motion for an extension of time must be filed no later than fifteen (15) days prior to the deadline sought to be extended. IT IS SO ORDERED. DATED: 4/23/10 SAUNDRA BROWN ARMSTRONG United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JUAN VILLA RAMIREZ, Plaintiff, v. JAMES TILTON et al, Defendant. /

Case Number: CV07-04681 SBA CERTIFICATE OF SERVICE

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 April 26, 2010, 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.

Juan Villa Ramirez T-24667 California State Prison - San Quentin 2 A/C 6 San Quentin, CA 94974 Dated: April 26, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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