Thomas v. Ellis

Filing 3

ORDER OF SERVICE AND PARTIAL DISMISSAL. Signed by Judge Claudia Wilken on 4/8/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 4/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Case No.: C 12-5563 CW (PR)

EDWARD THOMAS,
Plaintiff,

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ORDER OF SERVICE AND PARTIAL
DISMISSAL

v.

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GERALD ELLIS, et al.,

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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 Salinas Valley

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State Prison (SVSP), has filed a pro se civil rights action
pursuant to 42 U.S.C. § 1983, alleging the violation of his

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constitutional rights by prison officials and medical staff at
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SVSP.

His motion for leave to proceed in forma pauperis has been

granted.

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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.

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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).

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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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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

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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.

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

Plaintiff’s Claims

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A.

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Plaintiff alleges that he is partially paralyzed and in

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Medical Claims

chronic pain as the result of gunshot injuries he suffered in

United States District Court
For the Northern District of California

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1996.

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SVSP have refused to continue his methadone prescription as

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previously prescribed for pain relief since November 2009.

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result, Plaintiff alleges that he is in constant and severe pain

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because of his injuries and is unable to sleep.

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alleges that, on September 9, 2010, Dr. Bright cancelled all of

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his prescriptions for assistive medical devices to help him

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ambulate and refused to renew medical chronos requiring that he be

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transported using waist chains, housed in a lower bunk on a lower

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tier, and allowed soft-sole shoes.

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that his chronic pain has been exacerbated.

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relief and damages.

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He alleges that, since March 30, 2011, medical staff at

As a

He further

As a result, Plaintiff alleges
He seeks injunctive

When Plaintiff’s allegations are construed liberally, they

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state cognizable Eighth Amendment claims for deliberate

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indifference to his serious medical needs.

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429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1992).

See Estelle v. Gamble,

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B.

Property Claim

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Plaintiff alleges that SVSP correctional officers E. Mata and
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Makela are responsible for the loss of his soft-sole shoes and

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other items of personal property, which went missing between April

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6 and 30, 2012, when his property was withheld from him and under

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their control.

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or confiscated.

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He surmises that the items either were destroyed
He seeks replacement shoes and damages.

Plaintiff’s allegations fail to state a claim for relief

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under 42 U.S.C. § 1983.

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that is random and unauthorized his remedy lies with the State, as

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neither the negligent nor intentional deprivation of property

When a prisoner suffers a property loss

United States District Court
For the Northern District of California

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states a due process claim under § 1983 under such circumstances.

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See Parratt v. Taylor, 451 U.S. 527, 535-44 (1981) (no claim where

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state employee negligently lost prisoner’s hobby kit), overruled

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in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-

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31 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (no claim

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for intentional destruction of inmate’s property).

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availability of an adequate state post-deprivation remedy, for

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example a state tort action, precludes relief under § 1983 because

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it provides adequate procedural due process.

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782 F.2d 825, 826 (9th Cir. 1986). California law provides an

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adequate post-deprivation remedy for any property deprivations.

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Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing

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Cal. Gov’t Code §§ 810-895).1

The

King v. Massarweh,

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Error! Main Document Only.Nor is a prisoner protected by
the Fourth Amendment against the seizure, destruction or
conversion of his property. See Taylor v. Knapp, 871 F.2d 803,
806 (9th Cir. 1989).

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Plaintiff claims his property was destroyed or confiscated as

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the result of improper handling by prison staff.

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fail to state a claim upon which relief may be granted under

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§ 1983.

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based on such allegations would be futile.

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claim is DISMISSED with prejudice and all claims against

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correctional officers E. Mata and Makela are DISMISSED from this

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action.

Such allegations

Additionally, amendment of the complaint to state a claim
Accordingly, this

CONCLUSION

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United States District Court
For the Northern District of California

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For the foregoing reasons, the Court orders as follows:

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1.

Plaintiff’s deprivation of property claim is DISMISSED

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with prejudice and all claims against Defendants E. Mata and

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Makela are DISMISSED from this action.

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2.

Plaintiff states cognizable claims for deliberate

indifference to his serious medical needs.

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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 (Docket no. 1) and

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all attachments thereto and a copy of this Order to SVSP

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Defendants Gerald Ellis -- Chief Executive Officer at SVSP; M.

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Sepulveda -- Chief Medical Officer at SVSP; T.W. Wy -- medical

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doctor at SVSP; T.J. Carnes -- registered nurse at SVSP; B. Miller

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-- registered nurse at SVSP; Darrin Bright -- doctor and ADA

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coordinator at SVSP.

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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, and a copy of this Order to Plaintiff.

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3.

The Clerk shall also mail a copy of the

Defendants are cautioned that Rule 4 of the Federal

Rules of Civil Procedure require them to cooperate in saving

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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 forms.

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waived, this action will proceed as if Defendants had been served

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on the 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

If service is

United States District Court
For the Northern District of California

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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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(This allows a longer time to respond than would

Defendants are advised to read the statement set forth at the

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foot of the waiver form that more completely describes the duties

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

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

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before Defendants have been personally served, the answer shall be

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due sixty days from the date on which the request for waiver was

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

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whichever is later.

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4.

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 thirty 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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summary judgment, it shall be supported by adequate factual

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documentation and shall conform in all respects to Federal Rule of

If Defendants file a motion for

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Civil Procedure 56.

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case cannot be resolved by summary judgment, they shall so inform

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the Court prior to the date the summary judgment motion is due.

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All papers filed with the Court shall be promptly served on

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Plaintiff.

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If Defendants are of the opinion that this

At the time of filing the motion for summary judgment or

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other dispositive motion, Defendants shall comply with the Ninth

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Circuit’s decisions in Woods v. Carey, 684 F.3d 934 (9th Cir.

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2012), and Stratton v. Buck, 697 F.3d 1004 (9th Cir. 2012), and

United States District Court
For the Northern District of California

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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.
b.

Plaintiff’s opposition to the motion for summary

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judgment or other dispositive motion shall be filed with the Court
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and served on Defendants no later than twenty-eight days after the
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date on which Defendants’ motion is filed.
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Before filing his opposition, Plaintiff is advised to read
the notice that will be provided to him by Defendants when the

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motion is filed, and Rule 56 of the Federal Rules of Civil

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Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party

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opposing summary judgment must come forward with evidence showing

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triable issues of material fact on every essential element of his

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claim).

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of proving his allegations in this case, he must be prepared to

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produce evidence in support of those allegations when he files his

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opposition to Defendants’ summary judgment 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 burden

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Such evidence

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declaration.

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simply by repeating the allegations of his complaint.
c.

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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.

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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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5.

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

United States District Court
For the Northern District of California

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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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6.

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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7.

It is Plaintiff’s responsibility to prosecute this case.

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He must keep the Court informed of any change of address and must

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comply with the Court’s orders in a timely fashion.

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8.

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 fourteen 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: 4/8/2013
________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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