Alejandrez v. Kircher et al

Filing 6

ORDER OF SERVICE. Signed by Judge Claudia Wilken on 10/7/2011. (ndr, COURT STAFF) (Filed on 10/7/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LEO ALEJANDREZ,

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Plaintiff,

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No. C 11-02381 CW (PR)
ORDER OF SERVICE

v.
M. KIRCHER, et al.,
Defendants.
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INTRODUCTION

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Plaintiff, a state prisoner currently incarcerated at

United States District Court
For the Northern District of California

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Corcoran State Prison, has filed a pro se civil rights action

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pursuant to 42 U.S.C. § 1983 alleging the violation of his Eighth

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and Fourteenth Amendment rights.

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in forma pauperis has been granted.

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His motion for leave to proceed

Venue is proper because the events giving rise to the claim

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are alleged to have occurred at Salinas Valley State Prison

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(SVSP), which is located in this judicial district.

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§ 1391(b).

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See 28 U.S.C.

DISCUSSION
I.

Standard of Review
A federal court must conduct a preliminary screening in any

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case in which a prisoner seeks redress from a governmental entity

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or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a).

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claims and dismiss any claims that are frivolous, malicious, fail

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to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief.

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§ 1915A(b)(1), (2).

In its review, the court must identify any cognizable

Id.

Pro se pleadings must be liberally construed.

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements: (1) that a right secured by the

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Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting

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under the color of state law.

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(1988).

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II.

Factual Background
According to the allegations in the complaint, in June 2008

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United States District Court
For the Northern District of California

West v. Atkins, 487 U.S. 42, 48

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Plaintiff was incarcerated at SVSP.

On June 24, 2008, Plaintiff

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and another inmate, both of whom are affiliated with the "Fresno

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Bulldogs," were involved in an altercation with two white inmates.

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As a result, Plaintiff was charged with a rules violation and

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subsequently found guilty of battery on an inmate.
Plaintiff maintains that during the course of the interaction

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between the "Fresno Bulldogs" and the white inmates SVSP

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correctional officers used excessive force when they shot

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Plaintiff in the head with "gas launcher direct impact rounds,"

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resulting in a head injury that required surgery and caused

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neurological damage and damage to Plaintiff's hearing, vision,

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balance and memory.
Plaintiff names as Defendants SVSP Correctional Sergeant M.

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Kircher and SVSP Correctional Officers R. Loza, O. Ponce, Frank

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Colburn and M. Herrera.

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III.

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Legal Claims
The treatment a prisoner receives in prison and the conditions

under which he is confined are subject to scrutiny under the
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Eighth Amendment.

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(1993).

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infliction of pain . . . constitutes cruel and unusual punishment

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forbidden by the Eighth Amendment."

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312, 319 (1986).

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See Helling v. McKinney, 509 U.S. 25, 31

"'After incarceration, only the unnecessary and wanton

Whitley v. Albers, 475 U.S.

Whenever prison officials stand accused of using excessive

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force in violation of the Eighth Amendment, the core judicial

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inquiry is whether force was applied in a good-faith effort to

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maintain or restore discipline, or maliciously and sadistically to

United States District Court
For the Northern District of California

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cause harm.

See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);

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Whitley, 475 U.S. at 320-21.

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Here, Plaintiff has alleged facts which, when liberally

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construed, show that on the date of the events at issue SVSP

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correctional officers M. Herrera, R. Loza, O. Ponce and

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correctional sergeant M. Kircher used and/or authorized the use of

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excessive force against Plaintiff.

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Additionally, Plaintiff has alleged facts which, when

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liberally construed, show that SVSP correctional officer Frank

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Colburn failed to provide a videotape of the events to his

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supervisors, resulting in the violation of Plaintiff's Fourteenth

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Amendment right to have reliable information form the basis for

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prison disciplinary actions.

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704-05 (9th Cir. 1987).

See Cato v. Rushen, 824 F.2d 703,

CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

The Clerk of the Court shall mail a Notice of Lawsuit

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

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Waiver of Service of Summons, a copy of the complaint and all
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attachments thereto (docket no. 1) and a copy of this Order to

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SVSP Defendants M. Kircher, R. Loza, O. Ponce, Frank Colburn and

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M. Herrera.

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

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complaint and a copy of this Order to the State Attorney General's

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Office in San Francisco.

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copy of this Order to Plaintiff.

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2.

Additionally, the Clerk shall mail a

Defendants are cautioned that Rule 4 of the Federal

Rules of Civil Procedure requires them to cooperate in saving

United States District Court
For the Northern District of California

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unnecessary costs of service of the summons and complaint.

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Pursuant to Rule 4, if Defendants, after being notified of this

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action and asked by the Court, on behalf of Plaintiff, to waive

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service of the summons, fail to do so, they will be required to

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bear the cost of such service unless good cause be shown for their

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failure to sign and return the waiver form.

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this action will proceed as if Defendants had been served on the

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date that the waiver is filed, except that pursuant to Rule

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12(a)(1)(B), Defendants will not be required to serve and file an

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answer before sixty (60) days from the date on which the request

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for waiver was sent.

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would be required if formal service of summons is necessary.)

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Defendants are asked to read the statement set forth at the foot

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of the waiver form that more completely describes the duties of

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the parties with regard to waiver of service of the summons.

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service is waived after the date provided in the Notice but before

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Defendants have been personally served, the Answer shall be due

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

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sent or twenty (20) days from the date the waiver form is filed,

If service is waived,

(This allows a longer time to respond than

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If

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whichever is later.
3.

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

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to Federal Rule of Civil Procedure 56.

The motion shall be supported by

If Defendants are of the

United States District Court
For the Northern District of California

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opinion that this case cannot be resolved by summary judgment,

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

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judgment motion is due.

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promptly served on Plaintiff.
b.

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All papers filed with the Court shall be

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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should be given to pro se plaintiffs facing a summary judgment

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motion:

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The Ninth Circuit has held that the following notice

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
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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)
United States District Court
For the Northern District of California

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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).

Plaintiff is cautioned that because he bears the

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burden of proving his allegations in this case, he must be
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prepared to produce evidence in support of those allegations when
he files his opposition to Defendants' dispositive motion.

evidence may include sworn declarations from himself and other
witnesses to the incident, and copies of documents authenticated
by sworn declaration.

c.

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Defendants shall file a reply brief no later than

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

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Plaintiff will not be able to avoid summary

judgment simply by repeating the allegations of his complaint.

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Such

The motion shall be deemed submitted as of the date

the reply brief is due.

No hearing will be held on the motion

unless the Court so orders at a later date.
4.

Discovery may be taken in this action in accordance with

the Federal Rules of Civil Procedure.

Leave of the Court pursuant

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

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or 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

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

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7.

Extensions of time are not favored, though reasonable

extensions will be granted.

Any motion for an extension of time

United States District Court
For the Northern District of California

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

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deadline sought to be extended.

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IT IS SO ORDERED.
DATED: 10/7/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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LEO ALEJANDREZ,
Case Number: CV11-02381 CW

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United States District Court
For the Northern District of California

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Plaintiff,
CERTIFICATE OF SERVICE
v.
M KIRCHER et al,
Defendant.

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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 7, 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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Leo Alejandrez P-20280
4A-2L-32
CSP - Corcoran
P.O. Box 3476
Corcoran, CA 93212
Dated: October 7, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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