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)

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

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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 complaint and all attachments

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thereto (docket no. 1) and a copy of this Order to PBSP Licensed

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Vocational Nurses B. Stone and A. Anders, PBSP Physician N. Adams,

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PBSP Nurse Practitioner S. Risenhoover and PBSP Correctional

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Officer R. Escobar.

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of the complaint and a copy of this Order to the State Attorney

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General's Office in San Francisco.

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mail a copy of this Order to Plaintiff.

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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

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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

Pursuant to Rule 4,

If service is waived, this action will

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

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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

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

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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.

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7.

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:

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a.

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.

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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

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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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be given to pro se plaintiffs facing a summary judgment motion:

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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

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.

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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.

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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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8.

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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

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shall respond to the motion for preliminary injunction (docket no.

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9).

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supported by adequate factual documentation and shall conform in

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all respects to the Federal Rules of Civil Procedure, and all

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papers filed with the Court shall be promptly served on Plaintiff.

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The response to the motion for preliminary injunction shall be

b.

Plaintiff may file a reply within fourteen (14) days

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of the date Defendants' response is filed.

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should be supported by factual documentation and should demonstrate

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why Plaintiff satisfies the following standard:

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Plaintiff's reply

Under the traditional test for granting preliminary injunctive

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relief, Plaintiff must: (1) establish a strong likelihood of

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success on the merits; (2) show the possibility of irreparable

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injury to Plaintiff if the preliminary relief is not granted;

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(3) show a balance of hardships favoring Plaintiff; and (4) show

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that granting the injunction favors the public interest.

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Angeles Memorial Coliseum Comm'n v. Nat'l Football League, 634 F.2d

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1197, 1200 (9th Cir. 1980).

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See Los

The Prison Litigation Reform Act requires further that
preliminary injunctions relating to prison conditions "be narrowly
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drawn, extend no further than necessary to correct the harm the

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court finds requires preliminary relief, and be the least intrusive

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means necessary to correct that harm."

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The Court must give "substantial weight to any adverse impact on

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public safety or the operation of a criminal justice system caused

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by the preliminary relief."

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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

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the Federal Rules of Civil Procedure.

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

United States District Court
For the Northern District of California

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Leave of the Court pursuant

Plaintiff and any other necessary witnesses confined in prison.
10.

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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11.

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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12.

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: 10/17/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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JARMAAL SMITH,
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Case Number: CV10-04389 CW
Plaintiff,

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CERTIFICATE OF SERVICE
v.

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NANCY ADAMS et al,
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Defendant.
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United States District Court
For the Northern District of California

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/

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.

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Jarmaal Smith T76804
PBSP, ASU D-#1
P.O. Box 7500
Crescent City, CA 95532

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Dated: October 17, 2011
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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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