Evins v. Curry

Filing 7

ORDER OF SERVICE. Signed by Judge Claudia Wilken on 12/4/08. (scc, COURT STAFF) (Filed on 12/4/2008)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) v. ) ) ) BEN CURRY, et al., ) ) Defendants. _________________________________ ) No. C 08-2537 CW (PR) ORDER OF SERVICE

3 WILLIAM L. EVINS, 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15

Plaintiff William L. Evins, a state prisoner currently incarcerated at the Correctional Training Facility (CTF), has

filed the present pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging that prison officials at CTF were deliberately indifferent to his medical needs. His motion for leave to proceed

in forma pauperis has been granted. Venue is proper in this district because the acts complained 28 U.S.C.

16 of occurred at CTF, which is located in Monterey County. 17 §§ 84(a), 1391(b). 18 19 BACKGROUND

According to the allegations in the complaint, since 2003,

20 Plaintiff has had "two different types of dental diseases that have 21 been diagnosed by the CTF Dental Department." (Compl. at 3.) He 22 claims that he did not receive proper treatment for his dental 23 problems, which has resulted in "constant pain since 2003 and the 24 degeneration of all of Plaintiff's teeth." (Id.) He also claims 25 that these dental diseases have affected his heart. (Id.) 26 Plaintiff alleges that the failure to provide him with dental 27 care when he was suffering and in pain since 2003 amounted to 28 deliberate indifference to his serious medical needs. following as Defendants: He names the CTF Dentist P. Babienco; CTF Chief Dental

1 Officer K. B. Sather; CTF Chief Medical Officer Joseph Chudy; and 2 CTF Warden Ben Curry. 3 damages. 4 5 I. 6 Standard of Review A federal court must conduct a preliminary screening in any DISCUSSION He seeks injunctive relief and monetary

7 case in which a prisoner seeks redress from a governmental entity 8 or officer or employee of a governmental entity. 9 § 1915A(a). See 28 U.S.C.

In its review, the court must identify cognizable

10 claims and dismiss any claims that are frivolous, malicious, fail United States District Court For the Northern District of California 11 to state a claim upon which relief may be granted or seek monetary 12 relief from a defendant who is immune from such relief. 13 § 1915A(b)(1),(2). 14 construed. 16 See id.

Pro se pleadings must, however, be liberally

See Balistreri v. Pacifica Police Dep't, 901 F.2d 696,

15 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must 17 allege two essential elements: (1) that a right secured by the 18 Constitution or laws of the United States was violated, and 19 (2) that the alleged violation was committed by a person acting 20 under the color of state law. 21 (1988). 22 II. 23 Legal Claim Deliberate indifference to the serious medical needs of See West v. Atkins, 487 U.S. 42, 48

24 convicted prisoners violates the Eighth Amendment's proscription 25 against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 26 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 27 1992), overruled on other grounds by WMX Technologies, Inc. v. 28 Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 2 Serious

1 medical needs can include a prisoner's need for dental care.

See

2 Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989) (dental 3 care important medical need of inmates). 4 A determination of "deliberate indifference" involves an

5 examination of two elements: the seriousness of the prisoner's 6 medical need and the nature of the defendant's response to that 7 need. McGuckin, 974 F.2d at 1059. A serious medical need exists

8 if the failure to treat a prisoner's condition could result in 9 further significant injury or the "unnecessary and wanton 10 infliction of pain." United States District Court For the Northern District of California Id. (citing Estelle, 429 U.S. at 104). The 11 existence of an injury that a reasonable doctor or patient would 12 find important and worthy of comment or treatment; the presence of 13 a medical condition that significantly affects an individual's 14 daily activities; or the existence of chronic and substantial pain 15 are examples of indications that a prisoner has a serious need for 16 medical treatment. 18 Id. at 1059-60 (citing Wood v. Housewright, 900 17 F.2d 1332, 1337-41 (9th Cir. 1990)). A prison employee is deliberately indifferent if he knows that 19 a prisoner faces a substantial risk of serious harm and disregards 20 that risk by failing to take reasonable steps to abate it. 21 v. Brennan, 511 U.S. 825, 837 (1994). 22 Liberally construed, Plaintiff's allegations present a 23 cognizable claim for relief against Defendants Babienco, Sather and 24 Chudy. However, Plaintiff has not alleged an adequate basis for A supervisor may be liable 25 liability against Defendant Curry. Farmer

26 under § 1983 upon a showing of (1) personal involvement in the 27 constitutional deprivation or (2) a sufficient causal connection 28 between the supervisor's wrongful conduct and the constitutional 3

1 violation.

Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Here, Plaintiff has

2 Cir. 1991) (en banc) (citation omitted). 3 alleged neither.

Rather, it appears that he is seeking to impose

4 liability under the doctrine of respondeat superior, that is, 5 because Defendant Curry, as the warden of CTF, is responsible for 6 the actions or omissions of his employees. However, respondeat

7 superior liability is not a basis for recovery in a § 1983 action. 8 Accordingly, Plaintiff's claim against Defendant Curry is dismissed 9 with leave to amend. 11 explained above. 12 13 14 CONCLUSION For the foregoing reasons, the Court orders as follows: 1. Plaintiff has stated a cognizable Eighth Amendment claim
Plaintiff may file an amendment to the

10 complaint that alleges supervisory liability under the standards United States District Court For the Northern District of California

15 against Defendants Babienco, Sather and Chudy for deliberate 16 indifference to his medical needs. 17 2. Plaintiff's supervisory liability claim against Defendant Within 18 Curry is DISMISSED WITH LEAVE TO AMEND as indicated above.

19 thirty (30) days of the date of this Order Plaintiff may file an 20 amended supervisory liability claim against Defendants Curry as set 21 forth above in Section II of this Order. (Plaintiff shall resubmit The failure to do 22 only that claim and not the entire complaint.)

23 so will result in the dismissal without prejudice of the 24 supervisory liability claim against Defendant Curry. 25 3. The Clerk of the Court shall mail a Notice of Lawsuit and 26 Request for Waiver of Service of Summons, two copies of the Waiver 27 of Service of Summons, a copy of the complaint and all attachments 28 4

1 thereto (docket no. 1) and a copy of this Order to CTF Dentist P. 2 Babienco; CTF Chief Dental Officer K. B. Sather; and CTF Chief 3 Medical Officer Joseph Chudy. The Clerk of the Court shall also

4 mail a copy of the complaint and a copy of this Order to the State 5 Attorney General's Office in San Francisco. Additionally, the

6 Clerk shall mail a copy of this Order to Plaintiff. 7 4. Defendants are cautioned that Rule 4 of the Federal Rules

8 of Civil Procedure requires them to cooperate in saving unnecessary 9 costs of service of the summons and complaint. Pursuant to Rule 4, 10 if Defendants, after being notified of this action and asked by the United States District Court For the Northern District of California 11 Court, on behalf of Plaintiff, to waive service of the summons, 12 fail to do so, they will be required to bear the cost of such 13 service unless good cause be shown for their failure to sign and 14 return the waiver form. If service is waived, this action will 15 proceed as if Defendants had been served on the date that the 16 waiver is filed, except that pursuant to Rule 12(a)(1)(B), 17 Defendants will not be required to serve and file an answer before 18 sixty (60) days from the date on which the request for waiver was 19 sent. (This allows a longer time to respond than would be required Defendants are asked 20 if formal service of summons is necessary.)

21 to read the statement set forth at the foot of the waiver form that 22 more completely describes the duties of the parties with regard to 23 waiver of service of the summons. If service is waived after the 24 date provided in the Notice but before Defendants have been 25 personally served, the Answer shall be due sixty (60) days from the 26 date on which the request for waiver was sent or twenty (20) days 27 from the date the waiver form is filed, whichever is later. 28 5. Defendants shall answer the complaint in accordance with 5

1 the Federal Rules of Civil Procedure.

The following briefing

2 schedule shall govern dispositive motions in this action: 3 a. No later than ninety (90) days from the date their

4 answer is due, Defendants shall file a motion for summary judgment 5 or other dispositive motion. The motion shall be supported by

6 adequate factual documentation and shall conform in all respects to 7 Federal Rule of Civil Procedure 56. If Defendants are of the

8 opinion that this case cannot be resolved by summary judgment, they 9 shall so inform the Court prior to the date the summary judgment 10 motion is due. United States District Court For the Northern District of California 12 All papers filed with the Court shall be promptly 11 served on Plaintiff. b. Plaintiff's opposition to the dispositive motion 13 shall be filed with the Court and served on Defendants no later 14 than sixty (60) days after the date on which Defendants' motion is 15 filed. 17 18 19 20 21 22 23 24 25 26 27 28 The Ninth Circuit has held that the following notice should 16 be given to pro se plaintiffs facing a summary judgment motion: The defendants have 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 defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If 6

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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 defendants], your case will be dismissed and there will be no trial.

4 See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en 5 banc). 6 Plaintiff is advised to read Rule 56 of the Federal Rules of 7 Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 8 (party opposing summary judgment must come forward with evidence 9 showing triable issues of material fact on every essential element 10 of his claim). United States District Court For the Northern District of California Plaintiff is cautioned that because he bears the 11 burden of proving his allegations in this case, he must be prepared 12 to produce evidence in support of those allegations when he files 13 his opposition to Defendants' dispositive motion. Such evidence 14 may include sworn declarations from himself and other witnesses to 15 the incident, and copies of documents authenticated by sworn 16 declaration. Plaintiff will not be able to avoid summary judgment 17 simply by repeating the allegations of his complaint. 18 c. If Defendants wish to file a reply brief, they shall 19 do so no later than thirty (30) days after the date Plaintiff's 20 opposition is filed. 21 d. The motion shall be deemed submitted as of the date 22 the reply brief is due. No hearing will be held on the motion 23 unless the Court so orders at a later date. 24 6. Discovery may be taken in this action in accordance with 25 the Federal Rules of Civil Procedure. Leave of the Court pursuant 26 to Rule 30(a)(2) is hereby granted to Defendants to depose 27 Plaintiff and any other necessary witnesses confined in prison. 28 7

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7.

All communications by Plaintiff with the Court must be

2 served on Defendants, or Defendants' counsel once counsel has been 3 designated, by mailing a true copy of the document to Defendants or 4 Defendants' counsel. 5 8. It is Plaintiff's responsibility to prosecute this case.

6 Plaintiff must keep the Court informed of any change of address and 7 must comply with the Court's orders in a timely fashion. 8 9. Extensions of time are not favored, though reasonable Any motion for an extension of time 9 extensions will be granted. 11 sought to be extended. 12 IT IS SO ORDERED. 12/4/08 CLAUDIA WILKEN United States District Judge 13 DATED: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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10 must be filed no later than fifteen (15) days prior to the deadline United States District Court For the Northern District of California

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1 2 3 4 5 6 v. WILLIAM L. EVINS, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV08-02537 CW CERTIFICATE OF SERVICE

7 BEN CURRY et al, Defendant. 8 9

/

United States District Court For the Northern District of California

10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 11 That on December 4, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said 12 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 13 located in the Clerk's office. 14 15 William L. Evins 16 D14797 P.O. Box 689 17 Soledad, CA 93960 18 Dated: December 4, 2008 19 20 21 22 23 24 25 26 27 28
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Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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