Reynoso v. Sayre et al

Filing 6

ORDER OF SERVICE. Signed by Judge Claudia Wilken on 4/10/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 4/10/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OMAR REYNOSO,
Plaintiff,

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CHIEF MEDICAL OFFICER MICHAEL
SAYRE, et al.,
Defendants.
________________________________/

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INTRODUCTION

United States District Court
For the Northern District of California

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Plaintiff, a state prisoner incarcerated at Pelican Bay State
Prison (PBSP), has filed a pro se civil rights action pursuant to
42 U.S.C. § 1983, alleging deliberate indifference to his serious
medical needs and negligence.

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His motion for leave to proceed in

forma pauperis has been granted.

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ORDER OF SERVICE

v.

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No. C 11-4525 CW (PR)

In his complaint, Plaintiff names the following Defendants:
PBSP Chief Medical Officer Michael Sayre, PBSP Primary Care
Provider Laurie Thomas, PBSP Primary Care Provider Adams and PBSP
Acting Warden Jacquez.

Plaintiff seeks monetary damages and

injunctive relief.

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DISCUSSION

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I.

Standard of Review

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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).

In its review, the court must identify any cognizable

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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.

Id.

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§ 1915A(b)(1), (2).

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

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1988).

Pro se pleadings must be liberally construed.

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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.

United States District Court
For the Northern District of California

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(1988).
DISCUSSION

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

Plaintiff alleges as follows:

Plaintiff suffers from chronic

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lower back pain caused by degenerative disk disease.

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transfer to PBSP in January 2010, he received adequate care for

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his condition at Corcoran State Prison.

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PBSP, however, Defendants have failed to provide him with proper

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diagnostic procedures, treatment and pain relief.

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Prior to his

Since his arrival at

Plaintiff's allegations, when liberally construed, state a

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cognizable claim for deliberate indifference to his serious

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medical needs, in violation of the Eighth Amendment.

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v. Gamble, 429 U.S. 97, 104 (1976).

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supplemental jurisdiction over Plaintiff's state law negligence

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claim arising from the same allegations.

See Estelle

The Court also will exercise

See 28 U.S.C. § 1367(c).

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 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 Chief

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Medical Officer Michael Sayre, PBSP Primary Care Provider Laurie

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Thomas, PBSP Primary Care Provider Adams and PBSP Acting Warden

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Francisco Jacquez.

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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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2.

The Clerk of the Court shall also mail a copy

Additionally, the Clerk shall

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 days from the date on which the request for

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waiver was sent.

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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 days from the date on which the request for waiver was sent

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or twenty days from the date the waiver form is filed, whichever

If service is waived,

(This allows a longer time to respond than would

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If

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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 days from the date their answer

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

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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 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
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United States District Court
For the Northern District of California

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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.
See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en
banc).
Plaintiff is advised to read Rule 56 of the Federal Rules of
Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
(party opposing summary judgment must come forward with evidence
showing triable issues of material fact on every essential element
of his claim).

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

witnesses to the incident, and copies of documents authenticated
by sworn declaration.

Plaintiff will not be able to avoid summary

judgment simply by repeating the allegations of his complaint.
c.

Defendants shall file a reply brief no later than

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

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Such

evidence may include sworn declarations from himself and other

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Plaintiff is cautioned that because he bears the

d.

The motion shall be deemed submitted as of the date

the reply brief is due.

No hearing will be held on the motion

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

Discovery may be taken in this action in accordance with

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the Federal Rules of Civil Procedure.

Leave of the Court pursuant

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to Rule 30(a)(2) is hereby granted to Defendants to depose
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Plaintiff and any other necessary witnesses confined in prison.
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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

United States District Court
For the Northern District of California

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extensions will be granted.

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must be filed no later than fifteen 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: 4/10/2012
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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