Thomas v. Ellis

Filing 5

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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 Case No.: C 12-5563 CW (PR) EDWARD THOMAS, Plaintiff, 5 ORDER OF SERVICE AND PARTIAL DISMISSAL v. 6 7 GERALD ELLIS, et al., 8 Defendants. 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. West v. Atkins, 487 U.S. 42, 48 Plaintiff’s Claims 7 A. 8 Plaintiff alleges that he is partially paralyzed and in 9 Medical Claims chronic pain as the result of gunshot injuries he suffered in United States District Court For the Northern District of California 10 1996. 11 SVSP have refused to continue his methadone prescription as 12 previously prescribed for pain relief since November 2009. 13 result, Plaintiff alleges that he is in constant and severe pain 14 because of his injuries and is unable to sleep. 15 alleges that, on September 9, 2010, Dr. Bright cancelled all of 16 his prescriptions for assistive medical devices to help him 17 ambulate and refused to renew medical chronos requiring that he be 18 transported using waist chains, housed in a lower bunk on a lower 19 tier, and allowed soft-sole shoes. 20 that his chronic pain has been exacerbated. 21 relief and damages. 22 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 23 state cognizable Eighth Amendment claims for deliberate 24 indifference to his serious medical needs. 25 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 26 (9th Cir. 1992). See Estelle v. Gamble, 27 B. Property Claim 28 Plaintiff alleges that SVSP correctional officers E. Mata and 2 1 Makela are responsible for the loss of his soft-sole shoes and 2 other items of personal property, which went missing between April 3 6 and 30, 2012, when his property was withheld from him and under 4 their control. 5 or confiscated. 6 He surmises that the items either were destroyed He seeks replacement shoes and damages. Plaintiff’s allegations fail to state a claim for relief 7 under 42 U.S.C. § 1983. 8 that is random and unauthorized his remedy lies with the State, as 9 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 10 states a due process claim under § 1983 under such circumstances. 11 See Parratt v. Taylor, 451 U.S. 527, 535-44 (1981) (no claim where 12 state employee negligently lost prisoner’s hobby kit), overruled 13 in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330- 14 31 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (no claim 15 for intentional destruction of inmate’s property). 16 availability of an adequate state post-deprivation remedy, for 17 example a state tort action, precludes relief under § 1983 because 18 it provides adequate procedural due process. 19 782 F.2d 825, 826 (9th Cir. 1986). California law provides an 20 adequate post-deprivation remedy for any property deprivations. 21 Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing 22 Cal. Gov’t Code §§ 810-895).1 23 The King v. Massarweh, Plaintiff claims his property was destroyed or confiscated as 24 the result of improper handling by prison staff. 25 fail to state a claim upon which relief may be granted under Such allegations 26 1 27 28 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). 3 1 § 1983. 2 based on such allegations would be futile. 3 claim is DISMISSED with prejudice and all claims against 4 correctional officers E. Mata and Makela are DISMISSED from this 5 action. Additionally, amendment of the complaint to state a claim 6 Accordingly, this CONCLUSION 7 For the foregoing reasons, the Court orders as follows: 8 1. 9 United States District Court For the Northern District of California 10 11 12 Plaintiff’s deprivation of property claim is DISMISSED with prejudice and all claims against Defendants E. Mata and Makela are DISMISSED from this action. 2. Plaintiff states cognizable claims for deliberate indifference to his serious medical needs. 13 The Clerk of the Court shall mail a Notice of Lawsuit and 14 Request for Waiver of Service of Summons, two copies of the Waiver 15 of Service of Summons, a copy of the Complaint (Docket no. 1) and 16 all attachments thereto and a copy of this Order to SVSP 17 Defendants Gerald Ellis -- Chief Executive Officer at SVSP; M. 18 Sepulveda -- Chief Medical Officer at SVSP; T.W. Wy -- medical 19 doctor at SVSP; T.J. Carnes -- registered nurse at SVSP; B. Miller 20 -- registered nurse at SVSP; Darrin Bright -- doctor and ADA 21 coordinator at SVSP. 22 complaint and a copy of this Order to the State Attorney General’s 23 Office in San Francisco, and a copy of this Order to Plaintiff. 24 3. The Clerk shall also mail a copy of the Defendants are cautioned that Rule 4 of the Federal 25 Rules of Civil Procedure require them to cooperate in saving 26 unnecessary costs of service of the summons and complaint. 27 Pursuant to Rule 4, if Defendants, after being notified of this 28 action and asked by the Court, on behalf of Plaintiff, to waive 4 1 service of the summons, fail to do so, they will be required to 2 bear the cost of such service unless good cause be shown for their 3 failure to sign and return the waiver forms. 4 waived, this action will proceed as if Defendants had been served 5 on the date that the waiver is filed, except that pursuant to Rule 6 12(a)(1)(B), Defendants will not be required to serve and file an 7 answer before sixty days from the date on which the request for 8 waiver was sent. 9 be required if formal service of summons is necessary.) United States District Court For the Northern District of California 10 If service is (This allows a longer time to respond than would Defendants are advised to read the statement set forth at the 11 foot of the waiver form that more completely describes the duties 12 of the parties with regard to waiver of service of the summons. 13 If service is waived after the date provided in the Notice but 14 before Defendants have been personally served, the answer shall be 15 due sixty days from the date on which the request for waiver was 16 sent or twenty days from the date the waiver form is filed, 17 whichever is later. 18 4. Defendants shall answer the complaint in accordance with 19 the Federal Rules of Civil Procedure. 20 schedule shall govern dispositive motions in this action: 21 a. The following briefing No later than thirty days from the date their 22 answer is due, Defendants shall file a motion for summary judgment 23 or other dispositive motion. 24 summary judgment, it shall be supported by adequate factual 25 documentation and shall conform in all respects to Federal Rule of 26 Civil Procedure 56. 27 28 If Defendants file a motion for If Defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the Court prior to the date the summary judgment motion is due. 5 1 All papers filed with the Court shall be promptly served on 2 Plaintiff. 3 At the time of filing the motion for summary judgment or 4 other dispositive motion, Defendants shall comply with the Ninth 5 Circuit’s decisions in Woods v. Carey, 684 F.3d 934 (9th Cir. 6 2012), and Stratton v. Buck, 697 F.3d 1004 (9th Cir. 2012), and 7 provide Plaintiff with notice of what is required of him to oppose 8 a summary judgment motion or a motion to dismiss for failure to 9 exhaust administrative remedies. b. United States District Court For the Northern District of California 10 11 12 Plaintiff’s opposition to the motion for summary judgment or other dispositive motion shall be filed with the Court and served on Defendants no later than twenty-eight days after the date on which Defendants’ motion is filed. 13 Before filing his opposition, Plaintiff is advised to read 14 the notice that will be provided to him by Defendants when the 15 motion is filed, and Rule 56 of the Federal Rules of Civil 16 17 Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come forward with evidence showing 18 triable issues of material fact on every essential element of his 19 claim). 20 of proving his allegations in this case, he must be prepared to 21 produce evidence in support of those allegations when he files his 22 opposition to Defendants’ summary judgment motion. 23 may include sworn declarations from himself and other witnesses to 24 the incident, and copies of documents authenticated by sworn 25 declaration. 26 simply by repeating the allegations of his complaint. 27 28 Plaintiff is cautioned that because he bears the burden c. Such evidence 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. 6 1 d. 2 the reply brief is due. 3 unless the Court so orders at a later date. 4 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 5 the Federal Rules of Civil Procedure. 6 to Rule 30(a)(2) is hereby granted to Defendants to depose 7 Plaintiff and any other necessary witnesses confined in prison. 8 9 6. Leave of the Court pursuant All communications by Plaintiff with the Court must be served on Defendants, or Defendants’ counsel once counsel has been United States District Court For the Northern District of California 10 designated, by mailing a true copy of the document to Defendants 11 or Defendants’ counsel. 12 7. It is Plaintiff’s responsibility to prosecute this case. 13 He must keep the Court informed of any change of address and must 14 comply with the Court’s orders in a timely fashion. 15 8. Extensions of time are not favored, though reasonable 16 extensions will be granted. 17 must be filed no later than fourteen days prior to the deadline 18 sought to be extended. 19 IT IS SO ORDERED. 20 Any motion for an extension of time Dated: 4/8/2013 ________________________ CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 7

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