Thomas v. Hedgpath et al

Filing 10

ORDER OF SERVICE. Signed by Judge Claudia Wilken on 4/5/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 4/5/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 Plaintiff, 5 ORDER OF SERVICE v. 6 7 Case No.: C 12-3071 CW (PR) EDWARD THOMAS, ANTHONY HEDGPATH, et al., Defendants. 8 9 INTRODUCTION United States District Court For the Northern District of California 10 Plaintiff, a state prisoner incarcerated at Salinas Valley 11 12 State Prison (SVSP), has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the violation of his 13 constitutional rights by prison officials and medical staff at 14 15 SVSP. His motion for leave to proceed in forma pauperis has been granted. 16 17 18 DISCUSSION I. Standard of Review A federal court must conduct a preliminary screening in any 19 case in which a prisoner seeks redress from a governmental entity 20 or officer or employee of a governmental entity. 21 § 1915A(a). 22 claims and dismiss any claims that are frivolous, malicious, fail 23 to state a claim upon which relief may be granted or seek monetary 24 relief from a defendant who is immune from such relief. 25 § 1915A(b)(1), (2). 26 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 27 1988). 28 28 U.S.C. 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 1 allege two essential elements: (1) that a right secured by the 2 Constitution or laws of the United States was violated, and 3 (2) that the alleged violation was committed by a person acting 4 under the color of state law. 5 (1988). 6 II. 7 West v. Atkins, 487 U.S. 42, 48 Plaintiff’s Claims The operative pleading in this case is Plaintiff’s First 8 Amended Complaint (docket no. 6), which supersedes the original 9 complaint. United States District Court For the Northern District of California 10 Plaintiff alleges that he is mentally ill and because of his 11 mental health needs and inability to live compatibly with other 12 prisoners he was placed on single-cell status in 2005. 13 however, prison officials determined that he no longer was 14 entitled to single-cell housing and required that he be housed 15 with a cellmate. 16 at all levels of review. 17 Superior Court denied his state habeas corpus petition seeking 18 injunctive relief. 19 In 2010, Plaintiff’s administrative appeals were denied Thereafter, in 2012, the Monterey County Plaintiff claims that the decision to house him with another 20 prisoner is arbitrary and based solely on space concerns and was 21 made in retaliation for his having filed other lawsuits against 22 SVSP prison officials. 23 and medical staff, by forcing him to be double-celled, knowingly 24 are exacerbating the symptoms of his mental illness, placing him 25 in danger of being attacked by his cellmate and causing him to 26 face disciplinary measures if he refuses to double-cell. 27 28 He further claims that prison officials When Plaintiff’s allegations are construed liberally, they state cognizable Eighth Amendment claims for deliberate 2 1 indifference to his serious medical needs, which include serious 2 mental health needs, see Doty v. County of Lassen, 37 F.3d 540, 3 546 (9th Cir. 1994), and deliberate indifference to his safety, 4 see Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). 5 state a cognizable First Amendment retaliation claim. 6 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).1 They also Rhodes v. CONCLUSION 7 8 For the foregoing reasons, the Court orders as follows: 9 1. United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Plaintiff states cognizable claims for deliberate indifference to his serious medical needs and his safety, and for retaliation. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the First Amended Complaint (Docket no. 6) and all attachments thereto and a copy of this Order to SVSP Defendants Warden Anthony Hedgpath, Acting Chief Deputy Warden L. Trexler, Acting Chief Deputy Warden A. Solis, Facility D Captain W. Muniz, Facility C Captain N. Walker, Correctional Counselor II R. Burgh, Correctional Counselor I J. Martin, Correctional Counselor I D. Garcia, Correctional Counselor I R. Gaither, and Psychiatric Technician Bonilla. The Clerk shall also mail a copy of the complaint and a copy of this Order to the State Attorney General’s Office in San Francisco, and a copy of this Order to Plaintiff. 25 26 27 28 1 Plaintiff also claims the violation of his right to equal protection. However, the allegations in the complaint do not state a cognizable claim for relief on this ground. Accordingly, this claim is DISMISSED without prejudice. 3 1 2. Defendants are cautioned that Rule 4 of the Federal 2 Rules of Civil Procedure require them to cooperate in saving 3 unnecessary costs of service of the summons and complaint. 4 Pursuant to Rule 4, if Defendants, after being notified of this 5 action and asked by the Court, on behalf of Plaintiff, to waive 6 service of the summons, fail to do so, they will be required to 7 bear the cost of such service unless good cause be shown for their 8 failure to sign and return the waiver forms. 9 waived, this action will proceed as if Defendants had been served United States District Court For the Northern District of California 10 11 12 If service is on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty days from the date on which the request for waiver was sent. (This allows a longer time to respond than would 13 be required if formal service of summons is necessary.) 14 Defendants are advised to read the statement set forth at the 15 foot of the waiver form that more completely describes the duties 16 17 of the parties with regard to waiver of service of the summons. If service is waived after the date provided in the Notice but 18 before Defendants have been personally served, the answer shall be 19 due sixty days from the date on which the request for waiver was 20 sent or twenty days from the date the waiver form is filed, 21 whichever is later. 22 3. Defendants shall answer the complaint in accordance with 23 the Federal Rules of Civil Procedure. 24 schedule shall govern dispositive motions in this action: 25 a. The following briefing No later than thirty days from the date their 26 answer is due, Defendants shall file a motion for summary judgment 27 or other dispositive motion. 28 summary judgment, it shall be supported by adequate factual If Defendants file a motion for 4 1 documentation and shall conform in all respects to Federal Rule of 2 Civil Procedure 56. 3 case cannot be resolved by summary judgment, they shall so inform 4 the Court prior to the date the summary judgment motion is due. 5 All papers filed with the Court shall be promptly served on 6 Plaintiff. 7 If Defendants are of the opinion that this At the time of filing the motion for summary judgment or 8 other dispositive motion, Defendants shall comply with the Ninth 9 Circuit’s decisions in Woods v. Carey, 684 F.3d 934 (9th Cir. United States District Court For the Northern District of California 10 11 12 2012), and Stratton v. Buck, 697 F.3d 1004 (9th Cir. 2012), and provide Plaintiff with notice of what is required of him to oppose a summary judgment motion or a motion to dismiss for failure to exhaust administrative remedies. 13 b. Plaintiff’s opposition to the motion for summary 14 judgment or other dispositive motion shall be filed with the Court 15 and served on Defendants no later than twenty-eight days after the 16 17 date on which Defendants’ motion is filed. Before filing his opposition, Plaintiff is advised to read 18 the notice that will be provided to him by Defendants when the 19 motion is filed, and Rule 56 of the Federal Rules of Civil 20 Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party 21 opposing summary judgment must come forward with evidence showing 22 triable issues of material fact on every essential element of his 23 claim). 24 of proving his allegations in this case, he must be prepared to 25 produce evidence in support of those allegations when he files his 26 opposition to Defendants’ summary judgment 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 burden 5 Such evidence 1 declaration. 2 simply by repeating the allegations of his complaint. c. 3 4 Plaintiff will not be able to avoid summary judgment Defendants shall file a reply brief no later than fourteen 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 9 United States District Court For the Northern District of California 10 11 12 4. The motion shall be deemed submitted as of the date No hearing will be held on the motion 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. 5. All communications by Plaintiff with the Court must be served on Defendants, or Defendants’ counsel once counsel has been 13 designated, by mailing a true copy of the document to Defendants 14 or Defendants’ counsel. 15 6. 16 17 18 It is Plaintiff’s responsibility to prosecute this case. He must keep the Court informed of any change of address and must comply with the Court’s orders in a timely fashion. 7. Extensions of time are not favored, though reasonable 19 extensions will be granted. 20 must be filed no later than fourteen days prior to the deadline 21 sought to be extended. 22 IT IS SO ORDERED. 23 Any motion for an extension of time Dated: 4/5/2013 ________________________ CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 24 25 26 27 28 6

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