Gaddy v. Solis et al

Filing 13

ORDER OF PARTIAL DISMISSAL AND FOR SERVICE. Signed by Judge Phyllis J. Hamilton on 11/30/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/30/2012)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 MICHAEL JOHN GADDY, Plaintiff, 8 9 11 For the Northern District of California United States District Court 10 12 13 14 No. C 11-5568 PJH (PR) vs. Warden A. SOLIS; Captain N. WALKER; Lieutenant E. B. SHERMAN; Sergeant A. WELLS; Correctional Officers R. GUERRA, T. TRAN, J. GUTIERREZ, T. WHITLEY, S. SHEFFER, E. TREJO, T. RINCON, H. GASCA, T. REAMER, M. BOLES and S. ASENJO, ORDER OF PARTIAL DISMISSAL AND FOR SERVICE Defendants. / 15 This is a civil rights case filed pro se by a state prisoner. His claims arise from his 16 incarceration at Salinas Valley State Prison. The court determined in its initial review order 17 that plaintiff had stated a claim against defendants Sherman, Wells, Guerra, Tran, and 18 Gutierrez for excessive force and retaliation and defendant Reamer for retaliation. The 19 court also determined that plaintiff failed to state a claim against defendant Walker for his 20 gross negligence in allowing the other defendants to attack plaintiff. The complaint was 21 dismissed with leave to amend regarding Walker. Plaintiff has amended. 22 In the amended complaint plaintiff asserts in conclusory terms that Walker knew or 23 should have known that his subordinates were going to assault plaintiff. This is insufficient 24 under Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the 25 framework of a complaint, they must be supported by factual allegations.”). Nor has 26 plaintiff set forth any allegations that Walker was personally involved in the underlying 27 conduct. The claim against Walker will be dismissed with prejudice. Plaintiff also states 28 that several other guards left their posts and participated in the assault and another guard 1 failed to give plaintiff food on three occasions. However, plaintiff provides no other 2 information and these allegations are insufficient and these defendants will also be 3 dismissed. 4 5 6 7 CONCLUSION 1. Plaintiff’s claims are DISMISSED with prejudice against all defendants except Sherman, Wells, Guerra, Tran, Gutierrez and Reamer. 2. The clerk shall issue summons and the United States Marshal shall serve, 8 without prepayment of fees, copies of the complaint with attachments and copies of this 9 order on the following defendants: Sherman, Wells, Guerra, Tran, Gutierrez and Reamer at 11 For the Northern District of California United States District Court 10 Salinas Valley State Prison in Soledad. 3. In order to expedite the resolution of this case, the court orders as follows: 12 a. No later than sixty days from the date of service, defendants shall file a 13 motion for summary judgment or other dispositive motion. The motion shall be supported 14 by adequate factual documentation and shall conform in all respects to Federal Rule of 15 Civil Procedure 56, and shall include as exhibits all records and incident reports stemming 16 from the events at issue. If defendants are of the opinion that this case cannot be resolved 17 by summary judgment, they shall so inform the court prior to the date their summary 18 judgment motion is due. All papers filed with the court shall be promptly served on the 19 plaintiff. 20 b. At the time the dispositive motion is served, defendants shall also serve, 21 on a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 22 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 23 4 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand 24 and Wyatt notices must be given at the time motion for summary judgment or motion 25 to dismiss for nonexhaustion is filed, not earlier); Rand at 960 (separate paper 26 requirement). 27 28 c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the court and served upon defendants no later than thirty days from the date the motion was 2 1 served upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” 2 which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 3 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 4 If defendants file an unenumerated motion to dismiss claiming that plaintiff failed to 5 exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff 6 should take note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” 7 which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th 8 Cir. 2003). 9 11 For the Northern District of California United States District Court 10 12 13 d. If defendants wish to file a reply brief, they shall do so no later than fifteen days after the opposition is served upon them. e. 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. All communications by plaintiff with the court must be served on defendants, or 14 defendants' counsel once counsel has been designated, by mailing a true copy of the 15 document to defendants or defendants' counsel. 16 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 17 No further court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 18 parties may conduct discovery. 19 6. It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 20 informed of any change of address by filing a separate paper with the clerk headed “Notice 21 of Change of Address.” He also must comply with the court's orders in a timely fashion. 22 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 23 Federal Rule of Civil Procedure 41(b). 24 IT IS SO ORDERED. 25 Dated: November 30, 2012. PHYLLIS J. HAMILTON United States District Judge 26 27 G:\PRO-SE\PJH\CR.11\Gaddy5568.srv.wpd 28 3 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. judgment. Generally, summary judgment must be granted when there is no genuine issue 7 of material fact--that is, if there is no real dispute about any fact that would affect the result 8 of your case, the party who asked for summary judgment is entitled to judgment as a matter 9 of law, which will end your case. When a party you are suing makes a motion for summary 10 judgment that is properly supported by declarations (or other sworn testimony), you cannot 11 For the Northern District of California Rule 56 tells you what you must do in order to oppose a motion for summary 6 United States District Court 5 simply rely on what your complaint says. Instead, you must set out specific facts in 12 declarations, depositions, answers to interrogatories, or authenticated documents, as 13 provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and 14 documents and show that there is a genuine issue of material fact for trial. If you do not 15 submit your own evidence in opposition, summary judgment, if appropriate, may be entered 16 against you. If summary judgment is granted, your case will be dismissed and there will be 17 no trial. 18 19 20 21 22 NOTICE -- WARNING (EXHAUSTION) If defendants file an unenumerated motion to dismiss for failure to exhaust, they are seeking to have your case dismissed. If the motion is granted it will end your case. You have the right to present any evidence you may have which tends to show that 23 you did exhaust your administrative remedies. Such evidence may be in the form of 24 declarations (statements signed under penalty of perjury) or authenticated documents, that 25 is, documents accompanied by a declaration showing where they came from and why they 26 are authentic, or other sworn papers, such as answers to interrogatories or depositions. 27 28 If defendants file a motion to dismiss and it is granted, your case will be dismissed and there will be no trial. 4

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