Gonzalez v. Chudy et al

Filing 9

ORDER SERVING AMENDED COMPLAINT. Signed by Judge Claudia Wilken on 1/6/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/6/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ERIC L. GONZALEZ,

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No. C 10-03732 CW (PR)

Plaintiff,
ORDER SERVING AMENDED
COMPLAINT

v.

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DR. J. CHUDY, CHIEF MEDICAL
OFFICER, et al.,

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Defendants.
________________________________/

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United States District Court
For the Northern District of California

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Plaintiff, a state prisoner incarcerated at the Correctional
Training Facility - Soledad (CTF), filed this pro se civil rights
action pursuant to 42 U.S.C. § 1983, alleging that medical

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providers at CTF were deliberately indifferent to his serious

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medical needs in violation of his Eighth Amendment right to be free

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from cruel and unusual punishment.

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proceed in forma pauperis has been granted.

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Plaintiff's motion for leave to

On September 9, 2011, the Court conducted a preliminary

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screening of the complaint and determined that Plaintiff had failed

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to state a claim for relief under the Eighth Amendment against

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Defendants CTF Chief Medical Officer J. Chudy and CTF Registered

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Nurses Leary and Uy.

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with leave to amend for Plaintiff to allege facts showing that the

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Defendants acted with deliberate indifference to his serious

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medical needs.

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The Court, therefore, dismissed the complaint

Now pending before the Court is Plaintiff's amended complaint.

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Therein, he names as Defendants CTF Chief Medical Officers Dr. J.

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Chudy, Dr. Sepulveda and Dr. Bright.

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his claims against CTF Registered Nurses Leary and Uy.

Plaintiff has not realleged

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Having reviewed the allegations in the amended complaint, the

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Court finds Plaintiff states a cognizable claim for deliberate

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indifference to his serious medical needs by Chudy, Sepulveda and

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Bright, based on Plaintiff's allegations that those Defendants,

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knowing that Plaintiff was suffering from severe pain and swelling

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in his legs and required a podiatry consultation, failed to ensure

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that he received such consultation for more than a year.
CONCLUSION

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United States District Court
For the Northern District of California

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For the foregoing reasons, the Court orders as follows:
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The Clerk of the Court shall mail a Notice of Lawsuit and

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Request for Waiver of Service of Summons, two copies of the Waiver

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of Service of Summons, a copy of the amended complaint and all

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attachments thereto (docket no. 8) and a copy of this Order to CTF

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Defendants Dr. Chudy, Dr. Sepulveda and Dr. Bright.

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The Clerk of the Court shall also mail a copy of the complaint and

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a copy of this Order to the State Attorney General's Office in San

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Francisco.

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to Plaintiff.

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2.

Additionally, the Clerk shall mail a copy of this Order

Defendants are cautioned that Rule 4 of the Federal Rules

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of Civil Procedure requires them to cooperate in saving unnecessary

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costs of service of the summons and complaint.

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if Defendants, after being notified of this action and asked by the

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Court, on behalf of Plaintiff, to waive service of the summons,

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fail to do so, they will be required to bear the cost of such

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service unless good cause be shown for their failure to sign and

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return the waiver form.

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proceed as if Defendants had been served on the date that the

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waiver is filed, except that pursuant to Rule 12(a)(1)(B),

Pursuant to Rule 4,

If service is waived, this action will

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Defendants will not be required to serve and file an answer before

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sixty (60) days from the date on which the request for waiver was

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sent.

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if formal service of summons is necessary.)

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to read the statement set forth at the foot of the waiver form that

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more completely describes the duties of the parties with regard to

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waiver of service of the summons.

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date provided in the Notice but before Defendants have been

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personally served, the Answer shall be due sixty (60) days from the

(This allows a longer time to respond than would be required
Defendants are asked

If service is waived after the

United States District Court
For the Northern District of California

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date on which the request for waiver was sent or twenty (20) days

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from the date the waiver form is filed, whichever is later.
3.

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Defendants shall answer the complaint in accordance with

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the Federal Rules of Civil Procedure.

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schedule shall govern dispositive motions in this action:
a.

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The following briefing

No later than ninety (90) days from the date their

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answer is due, Defendants shall file a motion for summary judgment

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or other dispositive motion.

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adequate factual documentation and shall conform in all respects to

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Federal Rule of Civil Procedure 56.

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opinion that this case cannot be resolved by summary judgment, they

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shall so inform the Court prior to the date the summary judgment

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motion is due.

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served on Plaintiff.
b.

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The motion shall be supported by

If Defendants are of the

All papers filed with the Court shall be promptly

Plaintiff's opposition to the dispositive motion

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shall be filed with the Court and served on Defendants no later

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than sixty (60) days after the date on which Defendants' motion is

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filed.

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//

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United States District Court
For the Northern District of California

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The Ninth Circuit has held that the following notice should be
given to pro se plaintiffs facing a summary judgment motion:
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
defendant'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
defendants], your case will be dismissed and there will
be no trial.

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See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en

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banc).

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Plaintiff is advised to read Rule 56 of the Federal Rules of

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Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

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(party opposing summary judgment must come forward with evidence

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showing triable issues of material fact on every essential element

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of his claim).

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burden of proving his allegations in this case, he must be prepared

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to produce evidence in support of those allegations when he files

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his opposition to Defendants' dispositive motion.

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may include sworn declarations from himself and other witnesses to

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the incident, and copies of documents authenticated by sworn

Plaintiff is cautioned that because he bears the

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Such evidence

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declaration.

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simply by repeating the allegations of his complaint.
c.

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Plaintiff will not be able to avoid summary judgment

Defendants shall file a reply brief no later than

thirty (30) days after the date Plaintiff's opposition is filed.

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d.

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the reply brief is due.

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unless the Court so orders at a later date.

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4.

The motion shall be deemed submitted as of the date
No hearing will be held on the motion

Discovery may be taken in this action in accordance with

the Federal Rules of Civil Procedure.

Leave of the Court pursuant

United States District Court
For the Northern District of California

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to Rule 30(a)(2) is hereby granted to Defendants to depose

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Plaintiff and any other necessary witnesses confined in prison.

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5.

All communications by Plaintiff with the Court must be

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served on Defendants, or Defendants' counsel once counsel has been

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designated, by mailing a true copy of the document to Defendants or

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Defendants' counsel.

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6.

It is Plaintiff's responsibility to prosecute this case.

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Plaintiff must keep the Court informed of any change of address and

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must comply with the Court's orders in a timely fashion.

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7.

Extensions of time are not favored, though reasonable

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extensions will be granted.

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must be filed no later than fifteen (15) days prior to the deadline

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sought to be extended.

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IT IS SO ORDERED.

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Any motion for an extension of time

DATED: 1/6/2012
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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