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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 ERIC L. GONZALEZ, 4 5 6 No. C 10-03732 CW (PR) Plaintiff, ORDER SERVING AMENDED COMPLAINT v. 7 DR. J. CHUDY, CHIEF MEDICAL OFFICER, et al., 8 Defendants. ________________________________/ 9 United States District Court For the Northern District of California 10 11 12 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. ยง 1983, alleging that medical 13 providers at CTF were deliberately indifferent to his serious 14 medical needs in violation of his Eighth Amendment right to be free 15 from cruel and unusual punishment. 16 proceed in forma pauperis has been granted. 17 Plaintiff's motion for leave to On September 9, 2011, the Court conducted a preliminary 18 screening of the complaint and determined that Plaintiff had failed 19 to state a claim for relief under the Eighth Amendment against 20 Defendants CTF Chief Medical Officer J. Chudy and CTF Registered 21 Nurses Leary and Uy. 22 with leave to amend for Plaintiff to allege facts showing that the 23 Defendants acted with deliberate indifference to his serious 24 medical needs. 25 The Court, therefore, dismissed the complaint Now pending before the Court is Plaintiff's amended complaint. 26 Therein, he names as Defendants CTF Chief Medical Officers Dr. J. 27 Chudy, Dr. Sepulveda and Dr. Bright. 28 his claims against CTF Registered Nurses Leary and Uy. Plaintiff has not realleged 1 Having reviewed the allegations in the amended complaint, the 2 Court finds Plaintiff states a cognizable claim for deliberate 3 indifference to his serious medical needs by Chudy, Sepulveda and 4 Bright, based on Plaintiff's allegations that those Defendants, 5 knowing that Plaintiff was suffering from severe pain and swelling 6 in his legs and required a podiatry consultation, failed to ensure 7 that he received such consultation for more than a year. CONCLUSION 8 9 United States District Court For the Northern District of California 10 For the foregoing reasons, the Court orders as follows: 1. The Clerk of the Court shall mail a Notice of Lawsuit and 11 Request for Waiver of Service of Summons, two copies of the Waiver 12 of Service of Summons, a copy of the amended complaint and all 13 attachments thereto (docket no. 8) and a copy of this Order to CTF 14 Defendants Dr. Chudy, Dr. Sepulveda and Dr. Bright. 15 The Clerk of the Court shall also mail a copy of the complaint and 16 a copy of this Order to the State Attorney General's Office in San 17 Francisco. 18 to Plaintiff. 19 2. Additionally, the Clerk shall mail a copy of this Order Defendants are cautioned that Rule 4 of the Federal Rules 20 of Civil Procedure requires them to cooperate in saving unnecessary 21 costs of service of the summons and complaint. 22 if Defendants, after being notified of this action and asked by the 23 Court, on behalf of Plaintiff, to waive service of the summons, 24 fail to do so, they will be required to bear the cost of such 25 service unless good cause be shown for their failure to sign and 26 return the waiver form. 27 proceed as if Defendants had been served on the date that the 28 waiver is filed, except that pursuant to Rule 12(a)(1)(B), Pursuant to Rule 4, If service is waived, this action will 2 1 Defendants will not be required to serve and file an answer before 2 sixty (60) days from the date on which the request for waiver was 3 sent. 4 if formal service of summons is necessary.) 5 to read the statement set forth at the foot of the waiver form that 6 more completely describes the duties of the parties with regard to 7 waiver of service of the summons. 8 date provided in the Notice but before Defendants have been 9 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 10 date on which the request for waiver was sent or twenty (20) days 11 from the date the waiver form is filed, whichever is later. 3. 12 Defendants shall answer the complaint in accordance with 13 the Federal Rules of Civil Procedure. 14 schedule shall govern dispositive motions in this action: a. 15 The following briefing No later than ninety (90) days from the date their 16 answer is due, Defendants shall file a motion for summary judgment 17 or other dispositive motion. 18 adequate factual documentation and shall conform in all respects to 19 Federal Rule of Civil Procedure 56. 20 opinion that this case cannot be resolved by summary judgment, they 21 shall so inform the Court prior to the date the summary judgment 22 motion is due. 23 served on Plaintiff. b. 24 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 25 shall be filed with the Court and served on Defendants no later 26 than sixty (60) days after the date on which Defendants' motion is 27 filed. 28 // 3 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 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. 17 See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en 18 banc). 19 Plaintiff is advised to read Rule 56 of the Federal Rules of 20 Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 21 (party opposing summary judgment must come forward with evidence 22 showing triable issues of material fact on every essential element 23 of his claim). 24 burden of proving his allegations in this case, he must be prepared 25 to produce evidence in support of those allegations when he files 26 his opposition to Defendants' dispositive motion. 27 may include sworn declarations from himself and other witnesses to 28 the incident, and copies of documents authenticated by sworn Plaintiff is cautioned that because he bears the 4 Such evidence 1 declaration. 2 simply by repeating the allegations of his complaint. c. 3 4 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. 5 d. 6 the reply brief is due. 7 unless the Court so orders at a later date. 8 9 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 10 to Rule 30(a)(2) is hereby granted to Defendants to depose 11 Plaintiff and any other necessary witnesses confined in prison. 12 5. All communications by Plaintiff with the Court must be 13 served on Defendants, or Defendants' counsel once counsel has been 14 designated, by mailing a true copy of the document to Defendants or 15 Defendants' counsel. 16 6. It is Plaintiff's responsibility to prosecute this case. 17 Plaintiff must keep the Court informed of any change of address and 18 must comply with the Court's orders in a timely fashion. 19 7. Extensions of time are not favored, though reasonable 20 extensions will be granted. 21 must be filed no later than fifteen (15) days prior to the deadline 22 sought to be extended. 23 IT IS SO ORDERED. 24 25 Any motion for an extension of time DATED: 1/6/2012 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 26 27 28 5

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