Smith v. Adams et al

Filing 12

ORDER OF SERVICE AND PARTIAL DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Claudia Wilken on 10/17/2011. (ndr, COURT STAFF) (Filed on 10/17/2011)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 JARMAAL SMITH, No. C 10-4389 CW (PR) ORDER OF SERVICE AND PARTIAL DISMISSAL WITH LEAVE TO AMEND Plaintiff, 4 v. 5 6 DR. N. ADAMS, et al., 7 Defendants. ________________________________/ 8 INTRODUCTION 9 Plaintiff, a state prisoner, has filed a pro se civil rights United States District Court For the Northern District of California 10 action pursuant to 42 U.S.C. § 1983 alleging claims of deliberate 11 indifference to his serious medical needs and retaliation. 12 Plaintiff has also filed a motion seeking preliminary injunctive 13 relief (docket no. 9). His motion for leave to proceed in forma 14 pauperis has been granted. 15 Venue is proper because the events giving rise to the claim 16 are alleged to have occurred at Pelican Bay State Prison (PBSP) 17 which is located in this judicial district. See 28 U.S.C. 18 § 1391(b). 19 In his complaint, Plaintiff names the following Defendants: 20 PBSP Licensed Vocational Nurses (LVN) B. Stone and A. Anders, PBSP 21 Physician N. Adams, PBSP Nurse Practitioner S. Risenhoover and 22 PBSP Correctional Officers R. Escobar and Hailey. Plaintiff seeks 23 monetary damages and injunctive relief. 24 DISCUSSION 25 I. Standard of Review 26 A federal court must conduct a preliminary screening in any 27 case in which a prisoner seeks redress from a governmental entity 28 1 or officer or employee of a governmental entity. 28 U.S.C. 2 § 1915A(a). 3 claims and dismiss any claims that are frivolous, malicious, fail 4 to state a claim upon which relief may be granted or seek monetary 5 relief from a defendant who is immune from such relief. 6 § 1915A(b)(1), (2). 7 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 8 1988). In its review, the court must identify any cognizable Id. Pro se pleadings must be liberally construed. To state a claim under 42 U.S.C. § 1983, a plaintiff must 10 United States District Court For the Northern District of California 9 allege two essential elements: (1) that a right secured by the 11 Constitution or laws of the United States was violated, and 12 (2) that the alleged violation was committed by a person acting 13 under the color of state law. 14 (1988). 15 II. 16 West v. Atkins, 487 U.S. 42, 48 Factual Background Plaintiff suffers from "intermitten [sic] migrane [sic] 17 headaches," "involuntary nerve twitching" and chest pains. 18 (Compl. at 2, 4.) 19 Plaintiff was first prescribed Gabapentin to treat his migraine 20 headaches and nerve twitching. While at Corcoran State Prison in August 2008, 21 On December 2, 2009, Plaintiff was transferred to PBSP. The 22 medications he had been previously prescribed were automatically 23 continued for the first thirty days at PBSP. 24 included 800 milligrams of Gabapentin every four hours. 25 claims that Defendants Stone and Anders denied Plaintiff medical 26 treatment by failing to administer Plaintiff's prescribed dosage 27 of Gabapentin in December 2009. 28 that Stone and Anders administered a liquid, rather than pill, His medications Plaintiff Specifically, Plaintiff claims 2 1 form of Gabapentin to him, but knowingly failed to provide him 2 consistently with the full measurement of 16cc of liquid 3 Gabapentin, which is equivalent to the 800 milligram pill. On December 22, 2009, Plaintiff confronted Defendant Stone 4 5 about not giving him the prescribed dosage of Gabapentin, and he 6 asked for her name -- which she did not reveal -- so that he could 7 file a complaint against her. 8 back Plaintiff's morning medication, and she did not administer 9 his afternoon medication. United States District Court For the Northern District of California 10 (Id. at 14.) (Id. at 15.) "suffered a minor headache . . . ." Defendant Stone took Plaintiff claims he (Id.) Also on December 22, 2009, Plaintiff's Gabapentin prescription 11 12 was amended from the "full 30 days" of coverage to "7 days" of 13 coverage. 14 "manipulated the doctor into amending Plaintiff's medication out 15 of retaliation against Plaintiff for disputing the amount of the 16 medication," and also for "asking for the LVN's name, with the 17 indication that he would file a complaint against her." 18 16.) 19 Stone. 20 (Id.) Plaintiff alleges that Defendant Stone (Id. at That same day, Plaintiff filed a grievance against Defendant On December 23, 2009, Defendant Stone administered Plaintiff's 21 morning liquid dose of Gabapentin at 14 ccs instead of 16 ccs. 22 Plaintiff did not mention the discrepancy to Defendant Stone. 23 On December 25, 2009, Defendant Anders administered 24 Plaintiff's evening liquid dose at 14 ccs instead of 16 ccs. 25 Plaintiff informed Defendant Anders of the discrepancy; however, 26 nothing was done to correct it. 27 28 On December 28, 2009, Plaintiff asked Defendant Anders why his medication was not being administered at the prescribed schedule 3 1 of every four hours. Plaintiff alleges Defendant Anders "lied to 2 Plaintiff," stating that his medication was to be administered 3 every twelve hours, not every four hours. (Id. at 17.) 4 On December 29, 2009, Defendant Anders administered the 5 evening rounds of medication; however, he did not administer 6 Gabapentin to Plaintiff. On December 30, 2009, Plaintiff asked Defendant Anders about 7 8 his medication. Defendant Anders replied that Plaintiff's 9 medication had been amended "from 3 a day to twice daily, and only United States District Court For the Northern District of California 10 for a seven day period commencing on December 22, 2009." (Id. at 11 19.) 12 to continue his Gabapentin prescription, which Defendant Anders 13 refused to do. 14 Defendant Anders. Plaintiff asked Defendant Anders to issue a "bridge order," That same day, Plaintiff filed a grievance against 15 On January 5, 2010, Defendant Adams evaluated Plaintiff. By 16 the time Plaintiff saw Defendant Adams, "at least a week" had 17 passed "since his medication had expired . . . ." 18 During the appointment, Plaintiff requested a prescription for 19 Gabapentin and that he see a specialist for his migraine headaches 20 and nerve twitching. 21 file and stated that "she did not see any recommendations from the 22 neurologist regarding 'Gabapentin.'" 23 asked Defendant Adams to search the part of the file that 24 corresponded to 2008. 25 need to review Plaintiff's file because she could not prescribe 26 Gabapentin regardless, in that PBSP does not issue that medication 27 for headaches. 28 "he wasn't going to die if he did not have medication for his (Id. at 20.) Defendant Adams looked through Plaintiff's (Id. at 22.) Plaintiff Defendant Adams replied that she did not (Id. at 23.) Defendant Adams also told Plaintiff 4 1 headaches, and that the best thing about migraine headaches is 2 that they do not occur every day, so he would be alright without 3 medication." 4 "if you just let migrane [sic] happen eventually they'll stop 5 altogether." 6 "he believed she was lying and that he was going to file a 7 complaint against her." 9 United States District Court For the Northern District of California 10 12 13 14 15 16 17 18 19 20 21 22 (Id. at 25.) Defendant Adams further stated that Plaintiff told Defendant Adams that (Id.) Defendant Adams responded, File your complaint, it's not going to change anything because they probably wouldn't approve it even if I tried to prescrib [sic] it to you. They don't have medication to be dishing out to people like you, you're a burden on the state and we have to cut back on the medication that we issue. 8 11 (Id. at 24.) (Id.) That same day, Plaintiff filed a grievance against Defendant Adams.1 On January 13, 2010, Defendant Risenhoover discontinued the Tylenol #3 pills prescribed by Defendant Adams without consulting Plaintiff. On January 14, 2010, Plaintiff "believes he submitted an emergency health care request (sick call slip) requesting to have his Tylenol #3 medication reinstated." (Id. at 26.) week, Plaintiff was seen by a triage nurse. Within a Plaintiff alleges the nurse was supposed to refer Plaintiff to a physician; however, three weeks passed without Plaintiff being seen by a physician. Plaintiff submitted another "sick call slip" with "EMERGENCY" 23 written at the top. (Id. at 27.) 24 25 26 1 27 28 Plaintiff writes that "on this same day of January 7, 2010 Plaintiff filed an administrative grievance against Dr. Adams." (Compl. at 26.) Because Plaintiff has alleged that his meeting with Dr. Adams occurred on January 5, 2010, the Court assumes that he filed his grievance on January 5. 5 1 On January 27, 2010, Plaintiff was interviewed by Nurse Labans 2 regarding the grievances filed against Defendants Stone, Anders and 3 Adams. 4 On February 25, 2010, Plaintiff was seen by Defendant 5 Risenhoover in response to his sick call slips. 6 why he had not been seen earlier, and Defendant Risenhoover replied 7 that "she did not think his condition was serious enough to warrant 8 immediate attention . . . ." 9 also stated, "I don't believe you need Gabapentin for your (Id. at 28.) Plaintiff inquired Defendant Risenhoover United States District Court For the Northern District of California 10 condition and that medication is not issued by" the California 11 Department of Corrections and Rehabilitation (CDCR). 12 Plaintiff responded that he had been prescribed Gabapentin for 13 almost two years by CDCR medical staff. 14 Defendant Risenhoover did not look at his file, and "did not appear 15 to be aware of any of the information that Plaintiff was conveying 16 to her." (Id. at 29.) Plaintiff alleges (Id. at 30.) 17 Plaintiff also "attempted to explain to this nurse that he had 18 recently been experiencing chest pain and cramping around his heart 19 area," that in August 2008 he was hospitalized for an irregular 20 heartbeat -- the origin of which had not been determined -- and 21 that he had been advised to tell prison staff to refer him to a 22 cardiologist. 23 to a cardiologist because "his condition was worstening [sic]," 24 but Risenhoover responded that Plaintiff would have to submit 25 another sick call slip because he could only talk about one issue 26 at a time. 27 almost 2 months for him to be seen on this issue and he was having (Id. at 30.) (Id. at 31.) He then asked Risenhoover to refer him Plaintiff explained that "it took him 28 6 1 really bad cramping around his heart," and that "he was concerned 2 that he would not make it another 2 months." 3 (Id.) Defendant Hailey then opened the office door and informed 4 Defendant Risenhoover she had "5 minutes." 5 Defendant Risenhoover whether she had reviewed his file prior to 6 his visit. 7 migraines are not treated with Gabapentin." 8 Plaintiff repeated that he was not receiving medication to treat 9 his headaches, to which Defendant Risenhoover responded, "I know (Id.) Plaintiff asked Defendant Risenhoover responded, "I don't need to, (Id. at 32.) United States District Court For the Northern District of California 10 you've probably been taking somebody else's medications." 11 Defendant Hailey again opened the door and announced that 12 Plaintiff's time was up. 13 Plaintiff any medication. 14 (Id.) Defendant Risenhoover did not prescribe On February 26, 2010, Plaintiff's three grievances were denied 15 at the first level of review by Chief Medical Officer M. Sayre. 16 On March 3, 2010, Plaintiff filed a grievance against 17 18 Defendant Hailey. On March 4, 2010, Plaintiff was informed by an unidentified 19 LVN that Defendant Risenhoover had ordered a feces test for 20 Plaintiff. 21 discuss anything with [Defendant Risenhoover] relating to his bowel 22 movements." Plaintiff refused to take the test because "he did not (Id. at 33.) 23 On March 9, Plaintiff filed a grievance against Defendant 24 Risenhoover; however, on March 11, 2010, PBSP "refused to process" 25 Plaintiff's grievance because of his three "outstanding" 26 grievances. 27 March 12, 2010, Plaintiff's grievance was returned a second time Plaintiff resubmitted his grievance that same day. 28 7 On 1 for the same reason. 2 the grievance, "he would not receive it back." 3 Plaintiff was advised that if he resubmitted (Id. at 35.) On March 18, 2010, Plaintiff complained to a LVN that he had 4 been experiencing "chest pain" and "very bad cramping around his 5 heart . . . all day." 6 who responded to the scene. 7 Facility clinic. 8 Defendant Escobar, and explained that his conditions were 9 worsening. (Id.) The LVN notified Defendant Escobar, Plaintiff was escorted to the "B" Plaintiff described his heart history to Plaintiff also explained that around 12:00 p.m. that United States District Court For the Northern District of California 10 day, he had suddenly felt "out of breath." 11 Escobar established that Plaintiff's "pulse was low." 12 Defendant Escobar explained that Plaintiff's heartbeat was probably 13 low "because he worked out." 14 does not work out. 15 about not exercising and that this condition was probably not as 16 bad as it seemed." 17 his cell without either treatment or a referral to PBSP's "CTC"2 18 facility, which he describes as "the institution's hospital used 19 for treating emergency situations." 20 Defendant Escobar did not seek to admit him to the CTC facility 21 "for punitive purposes and with malicious intentions," which is 22 "evidenced by the fact that [he] mocked Plaintiff, did not take him 23 seriously and accused Plaintiff of lying." 24 (Id.) (Id. at 36.) Defendant (Id.) Plaintiff responded that he Defendant Escobar "accused Plaintiff of lying (Id.) Defendant Escobar sent Plaintiff back to Plaintiff alleges that (Id. at 39.) Later that night, Plaintiff became lightheaded while 25 experiencing cramping around his heart. 26 floor of his cell." 27 medical staff, and Plaintiff was seen by a nurse. (Id. at 37.) He then "collapsed to the A correctional officer contacted 28 2 Plaintiff does not explain what CTC stands for. 8 1 2 On March 27, 2010, Plaintiff experienced a migraine headache and submitted another sick cell slip. 3 4 On March 28, 2010. Plaintiff submitted a grievance against Defendant Escobar. 5 On April 1, 2010, Plaintiff was seen by Defendant Risenhoover 6 for a second time. 7 "very bad cramping around his heart" and an "accelerated 8 heartbeat." 9 cardiologist. Plaintiff explained he had been experiencing (Id. at 40.) Plaintiff requested a referral to a Defendant Risenhoover responded, "Who's going to pay United States District Court For the Northern District of California 10 for it? 11 Defendant Risenhoover then stated, "I don't believe your condition 12 is serious enough to refer you to a cardiologist." 13 Plaintiff also attempted to request medication for his migraine 14 headaches based on a specialist's recommendations, but Defendant 15 Risenhoover replied that "we don't actually have to follow their 16 recommendations." 17 The state doesn't have that kind of money." (Id. at 41.) (Id.) (Id. at 42.) Plaintiff states, "To deal with these headaches without remedy 18 . . . amounts to torture because Plaintiff is made to endure an 19 extremely painful condition when he doesn't have to." 20 He adds that his nerve twitching condition is "painful at times and 21 causes enormous discomfort and significantly effects [sic] 22 Plaintiff's daily activities." 23 "Plaintiff's heart condition not only causes him pain from cramping 24 but it also causes him a great deal of fear that he will . . . 25 [have] a heart attack and die or suffer a stroke." 26 // 27 // 28 // (Id. at 49.) 9 (Id. at 47.) Finally, he states, (Id. at 49.) 1 III. Legal Claims 2 A. 3 Deliberate indifference to serious medical needs violates the Deliberate Indifference to Serious Medical Needs 4 Eighth Amendment's proscription against cruel and unusual 5 punishment. 6 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 7 on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 8 1136 (9th Cir. 1997) (en banc); Jones v. Johnson, 781 F.2d 769, 771 9 (9th Cir. 1986). See Estelle v. Gamble, 429 U.S. 97, 104 (1976); A determination of "deliberate indifference" United States District Court For the Northern District of California 10 involves an examination of two elements: the seriousness of the 11 prisoner's medical need and the nature of the defendant's response 12 to that need. 13 need exists if the failure to treat a prisoner's condition could 14 result in further significant injury or the "unnecessary and wanton 15 infliction of pain." 16 prison official is deliberately indifferent if he or she knows that 17 a prisoner faces a substantial risk of serious harm and disregards 18 that risk by failing to take reasonable steps to abate it. 19 v. Brennan, 511 U.S. 825, 837 (1994). 20 See McGuckin, 974 F.2d at 1059. A "serious" medical Id. (citing Estelle, 429 U.S. at 104). A Farmer Assuming Plaintiff's medical needs were "serious," Plaintiff 21 must allege facts which support a finding of deliberate 22 indifference to those needs by Defendants Stone, Anders, Adams, 23 Escobar, Risenhoover and Hailey. 24 prison officials deny, delay or intentionally interfere with 25 medical treatment, or it may be shown in the way in which prison 26 officials provide medical care. 27 28 Such indifference may appear when See McGuckin, 974 at 1062. Here, according to Plaintiff's allegations, Defendants Stone and Anders denied Plaintiff medical treatment by failing to 10 1 administer Plaintiff's prescribed dosage of Gabapentin, and 2 Defendant Adams and Risenhoover denied Plaintiff medical treatment 3 by failing to treat Plaintiff's migraine headaches and nerve 4 twitching. 5 Defendants Risenhoover and Escobar denied Plaintiff medical 6 treatment by failing to review Plaintiff's medical records to 7 confirm that he had a heart condition and had been advised to see a 8 cardiologist. 9 Additionally, according to Plaintiff's allegations, Accordingly, Plaintiff's allegations present a cognizable claim United States District Court For the Northern District of California 10 of deliberate indifference to serious medical needs against 11 Defendants Stone, Anders, Adams, Risenhoover and Escobar for their 12 failure to provide Plaintiff with medical care in response to his 13 symptoms. 14 Cir. 2003) (holding that a jury could infer that correctional 15 officers' failure to provide medical care in response to detainee's 16 extreme behavior, sickly appearance and statements that he was 17 diabetic and needed food demonstrated deliberate indifference). 18 See Lolli v. County of Orange, 351 F.3d 410, 420-21 (9th The complaint does not state a claim for relief against 19 Defendant Hailey, because Defendant Hailey is not linked 20 specifically to the allegations in the body of the complaint. 21 Liability may be imposed on an individual defendant under § 1983 if 22 the plaintiff can show that the defendant proximately caused the 23 deprivation of a federally protected right. 24 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 25 F.2d 1121, 1125 (9th Cir. 1981). 26 constitutional right within the meaning of § 1983 if he does an 27 affirmative act, participates in another's affirmative act or omits 28 to perform an act which he is legally required to do, that causes See Leer v. Murphy, A person deprives another of a 11 1 the deprivation of which the plaintiff complains. 2 F.2d at 633. 3 focus on the duties and responsibilities of each individual 4 defendant whose acts or omissions are alleged to have caused a 5 constitutional deprivation. 6 allegations will not suffice; the plaintiff must instead set forth 7 specific facts as to each individual defendant's deprivation of 8 protected rights. 9 See Leer, 844 The inquiry into causation must be individualized and See id. Sweeping conclusory Id. at 634. While Plaintiff alleges that Defendant Hailey informed United States District Court For the Northern District of California 10 Defendant Adams of the time remaining in Plaintiff's appointment, 11 Plaintiff has not linked Defendant Hailey to his deliberate 12 indifference claims. 13 cognizable deliberate indifference claim against Defendant Hailey. 14 Accordingly, Plaintiff's claim against Defendant Hailey is 15 DISMISSED with leave to amend. 16 deliberate indifference claim against Defendant Hailey in an 17 amendment to the complaint if he can, in good faith, allege facts 18 demonstrating that Defendant Hailey knew Plaintiff faced a 19 substantial risk of serious harm and disregarded that risk by 20 failing to take reasonable steps to abate it. 21 837. As such, Plaintiff has failed to state a Plaintiff may reassert his Farmer, 511 U.S. at 22 B. 23 "Within the prison context, a viable claim of First Amendment Retaliation 24 retaliation entails five basic elements: 25 state actor took some adverse action against an inmate (2) because 26 of (3) that prisoner's protected conduct, and that such action 27 (4) chilled the inmate's exercise of his First Amendment rights, 28 12 (1) An assertion that a 1 and (5) the action did not reasonably advance a legitimate 2 correctional goal." 3 Cir. 2005) (footnote omitted). 4 must show that the defendants took adverse action against him or 5 her that "would chill or silence a person of ordinary firmness from 6 future First Amendment activities." 7 1228 (9th Cir. 2000) (citing Mendocino Envtl. Ctr. v. Mendocino 8 County, 192 F.3d 1283, 1300 (9th Cir. 1999)). 9 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th To prove retaliation, a plaintiff White v. Lee, 227 F.3d 1214, Plaintiff alleges that, because he asked for Defendant Stone's United States District Court For the Northern District of California 10 name and indicated that he would file a complaint against her, 11 she retaliated against him by manipulating the doctor into changing 12 the remaining length of his Gabapentin prescription from thirty to 13 seven days. 14 sufficient to support each of the elements of retaliation. 15 addition, his conclusory allegation of wrongdoing on the part of 16 Defendant Stone -- based on her manipulating the doctor -- is 17 speculative and thus insufficient to state a cognizable claim for 18 relief. 19 Plaintiff filing his grievance against Defendant Stone. 20 without proof that a grievance was filed prior to the manipulation 21 of his medication, Plaintiff cannot show that this adverse action 22 against him was because of a protected conduct. 23 failed to state a cognizable retaliation claim against Defendant 24 Stone. 25 (Compl. at 16.) Plaintiff has not alleged facts In Furthermore, the alleged retaliation occurred prior to Thus, Plaintiff has Accordingly, Plaintiff's retaliation claim against Defendant 26 Stone is DISMISSED with leave to amend. 27 retaliation claim against Defendant Stone in an amendment to the 28 complaint if Plaintiff can, in good faith, allege that he engaged 13 Plaintiff may reassert his 1 in constitutionally protected conduct, that Defendant Stone took 2 adverse action against him in retaliation for the protected 3 conduct, and that Plaintiff suffered harm as a result of the 4 retaliation. 5 IV. 6 Motion for a Preliminary Injunction Plaintiff seeks immediate injunctive relief to order Defendants 7 Adams and Risenhoover to provide Plaintiff with Gabapentin at 800 8 mgs. to treat his migraine headaches. 9 1.) (Mot. for Prelim. Inj. at Prior to granting a preliminary injunction, however, notice to United States District Court For the Northern District of California 10 the adverse party is required. 11 Therefore, a motion for preliminary injunction cannot be decided 12 until the parties to the action are served. 13 F.2d 719, 727 (9th Cir. 1983). 14 may be granted without written or oral notice to the adverse party 15 or that party's attorney only if: (1) it clearly appears from 16 specific facts shown by affidavit or by the verified complaint that 17 immediate and irreparable injury, loss or damage will result to the 18 applicant before the adverse party or the party's attorney can be 19 heard in opposition, and (2) the applicant's attorney certifies in 20 writing the efforts, if any, which have been made to give notice 21 and the reasons supporting the claim that notice should not be 22 required. 23 under penalty of perjury that the information contained in his 24 pleadings is true and correct, and thus the pleadings may be deemed 25 affidavits, and although the first pleading describes Plaintiff's 26 circumstances with a fair amount of specificity, it does not 27 clearly appear from the pleadings that Plaintiff will suffer See Fed. R. Civ. P. 65(a)(1). See Zepeda v. INS, 753 A temporary restraining order (TRO) See Fed. R. Civ. P. 65(b). 28 14 Although Plaintiff swears 1 immediate and irreparable injury before Defendants can be given an 2 opportunity to respond. 3 Plaintiff claims that Defendants Adams and Risenhoover have 4 terminated his prescription for Gabapentin, which he first received 5 on August 12, 2008. 6 medication "was discontinued he has experienced migraine headaches" 7 on at least thirteen occasions, the most recent migraine headache 8 occurring on February 21, 2011. 9 While a migraine headache can be a debilitating and painful Plaintiff claims that since his Gabapentin (Mot. for Prelim. Inj. at 5.) United States District Court For the Northern District of California 10 condition, the pleadings do not clearly show that Plaintiff will 11 suffer irreparable injury. 12 In light of these circumstances, the Court directs Defendants 13 Adams and Risenhoover to respond to the motion for preliminary 14 injunction as directed below. 15 CONCLUSION 16 For the foregoing reasons, the Court orders as follows: 17 1. Plaintiff states a cognizable Eighth Amendment claim 18 against Defendants Stone, Anders, Adams, Risenhoover and Escobar 19 for deliberate indifference to serious medical needs. 20 2. Plaintiff's Eighth Amendment claim against Defendant 21 Hailey for deliberate indifference to serious medical needs is 22 DISMISSED with leave to amend as indicated above. 23 3. Plaintiff's First Amendment claim against Defendant Stone 24 for retaliation is DISMISSED with leave to amend as indicated 25 above. 26 4. Within thirty (30) days of the date of this Order, 27 Plaintiff may file an amended Eighth Amendment claim against 28 Defendant Hailey and an amended First Amendment claim against 15 1 Defendant Stone as set forth above in Section III(A) and (B) of 2 this Order. 3 the entire complaint.) 4 amendment to the complaint. 5 the civil case number of this action (C 10-4389 CW (PR)) and the 6 words AMENDMENT TO THE COMPLAINT on the first page. 7 do so will result in the dismissal without prejudice of the Eighth 8 Amendment claim against Defendant Hailey and the First Amendment 9 claim against Defendant Stone. United States District Court For the Northern District of California 10 5. (Plaintiff shall resubmit only those claims and not The amended claims must be submitted on an It must include the caption as well as The failure to 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 complaint and all attachments 13 thereto (docket no. 1) and a copy of this Order to PBSP Licensed 14 Vocational Nurses B. Stone and A. Anders, PBSP Physician N. Adams, 15 PBSP Nurse Practitioner S. Risenhoover and PBSP Correctional 16 Officer R. Escobar. 17 of the complaint and a copy of this Order to the State Attorney 18 General's Office in San Francisco. 19 mail a copy of this Order to Plaintiff. 20 6. The Clerk of the Court shall also mail a copy Additionally, the Clerk shall Defendants are cautioned that Rule 4 of the Federal Rules 21 of Civil Procedure requires them to cooperate in saving unnecessary 22 costs of service of the summons and complaint. 23 if Defendants, after being notified of this action and asked by the 24 Court, on behalf of Plaintiff, to waive service of the summons, 25 fail to do so, they will be required to bear the cost of such 26 service unless good cause be shown for their failure to sign and 27 return the waiver form. 28 proceed as if Defendants had been served on the date that the Pursuant to Rule 4, If service is waived, this action will 16 1 waiver is filed, except that pursuant to Rule 12(a)(1)(B), 2 Defendants will not be required to serve and file an answer before 3 sixty (60) days from the date on which the request for waiver was 4 sent. 5 if formal service of summons is necessary.) 6 to read the statement set forth at the foot of the waiver form that 7 more completely describes the duties of the parties with regard to 8 waiver of service of the summons. 9 date provided in the Notice but before Defendants have been (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 personally served, the Answer shall be due sixty (60) days from the 11 date on which the request for waiver was sent or twenty (20) days 12 from the date the waiver form is filed, whichever is later. 13 7. Defendants shall answer the complaint in accordance with 14 the Federal Rules of Civil Procedure. 15 schedule shall govern dispositive motions in this action: 16 a. The following briefing No later than ninety (90) days from the date their 17 answer is due, Defendants shall file a motion for summary judgment 18 or other dispositive motion. 19 adequate factual documentation and shall conform in all respects to 20 Federal Rule of Civil Procedure 56. 21 opinion that this case cannot be resolved by summary judgment, they 22 shall so inform the Court prior to the date the summary judgment 23 motion is due. 24 served on Plaintiff. 25 b. 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 26 shall be filed with the Court and served on Defendants no later 27 than sixty (60) days after the date on which Defendants' motion is 28 17 1 filed. 2 be given to pro se plaintiffs facing a summary judgment motion: 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 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 18 Such evidence 1 declaration. 2 simply by repeating the allegations of his complaint. 3 4 c. 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 8. 9 The motion shall be deemed submitted as of the date No hearing will be held on the motion The Court further orders as follows: a. On the same date their answer is due, Defendants United States District Court For the Northern District of California 10 shall respond to the motion for preliminary injunction (docket no. 11 9). 12 supported by adequate factual documentation and shall conform in 13 all respects to the Federal Rules of Civil Procedure, and all 14 papers filed with the Court shall be promptly served on Plaintiff. 15 The response to the motion for preliminary injunction shall be b. Plaintiff may file a reply within fourteen (14) days 16 of the date Defendants' response is filed. 17 should be supported by factual documentation and should demonstrate 18 why Plaintiff satisfies the following standard: 19 Plaintiff's reply Under the traditional test for granting preliminary injunctive 20 relief, Plaintiff must: (1) establish a strong likelihood of 21 success on the merits; (2) show the possibility of irreparable 22 injury to Plaintiff if the preliminary relief is not granted; 23 (3) show a balance of hardships favoring Plaintiff; and (4) show 24 that granting the injunction favors the public interest. 25 Angeles Memorial Coliseum Comm'n v. Nat'l Football League, 634 F.2d 26 1197, 1200 (9th Cir. 1980). 27 28 See Los The Prison Litigation Reform Act requires further that preliminary injunctions relating to prison conditions "be narrowly 19 1 drawn, extend no further than necessary to correct the harm the 2 court finds requires preliminary relief, and be the least intrusive 3 means necessary to correct that harm." 4 The Court must give "substantial weight to any adverse impact on 5 public safety or the operation of a criminal justice system caused 6 by the preliminary relief." 7 9. 18 U.S.C. § 3626(a)(2). 18 U.S.C. § 3626(a)(2). Discovery may be taken in this action in accordance with 8 the Federal Rules of Civil Procedure. 9 to Rule 30(a)(2) is hereby granted to Defendants to depose United States District Court For the Northern District of California 10 11 Leave of the Court pursuant Plaintiff and any other necessary witnesses confined in prison. 10. All communications by Plaintiff with the Court must be 12 served on Defendants, or Defendants' counsel once counsel has been 13 designated, by mailing a true copy of the document to Defendants or 14 Defendants' counsel. 15 11. It is Plaintiff's responsibility to prosecute this case. 16 Plaintiff must keep the Court informed of any change of address and 17 must comply with the Court's orders in a timely fashion. 18 12. Extensions of time are not favored, though reasonable 19 extensions will be granted. 20 must be filed no later than fifteen (15) days prior to the deadline 21 sought to be extended. 22 IT IS SO ORDERED. 23 24 Any motion for an extension of time DATED: 10/17/2011 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 25 26 27 28 20 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 JARMAAL SMITH, 4 Case Number: CV10-04389 CW Plaintiff, 5 CERTIFICATE OF SERVICE v. 6 NANCY ADAMS et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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 October 17, 2011, 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. 13 14 15 16 Jarmaal Smith T76804 PBSP, ASU D-#1 P.O. Box 7500 Crescent City, CA 95532 17 Dated: October 17, 2011 18 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 21

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