Bibbs v. Sayre et al

Filing 26

ORDER by Judge Claudia Wilken DENYING PLAINTIFF'S ( 9 , 10 , 12 , 25 ) MOTIONS AND DEFENDANTS' 13 MOTION TO QUASH; GRANTING DEFENDANTS' 13 MOTION TO SET ASIDE DEFAULT; ISSUING BRIEFING SCHEDULE ON COGNIZABLE CLAIMS AND DIRECTING PARTIES TO FILE CONSENT OR DECLINATION TO MAGISTRATE JUDGE JURISDICTION. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 9/24/2013)

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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 12-5917 CW (PR)

MARTIN J. BIBBS,
Plaintiff,

ORDER DENYING PLAINTIFF'S
MOTIONS AND DEFENDANTS' MOTION
TO QUASH; GRANTING DEFENDANTS'
MOTION TO SET ASIDE DEFAULT;
ISSUING BRIEFING SCHEDULE ON
COGNIZABLE CLAIMS AND DIRECTING
PARTIES TO FILE CONSENT OR
DECLINATION TO MAGISTRATE JUDGE
JURISDICTION

v.
MICHAEL C. SAYRE, M.D. and
LAURIE THOMAS,
Defendants.

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United States District Court
For the Northern District of California

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Doc. Nos. 9, 10, 12, 13, 25

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INTRODUCTION
Plaintiff, a state prisoner incarcerated at Pelican Bay State

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Prison (PBSP), has filed a pro se civil rights action pursuant to

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42 U.S.C. § 1983, alleging the violation of his constitutional

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rights by medical staff at PBSP.

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He has paid the $350 filing fee.

On December 6, 2012, Plaintiff filed an amended complaint
(FAC) and served summons and FAC on Defendants Dr. Michael Sayre
and Physician's Assistant (PA) Laurie Thomas.

On March 7, 2013,

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Plaintiff asked the Court Clerk to enter default against Dr. Sayre
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and PA Thomas.

Doc. no. 6.

Because Defendants had not answered

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the FAC within the required time period, the Court Clerk entered

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default against them.

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moved for a default judgment against Defendants, on May 20, 2013,

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he moved for an evidentiary hearing on his motion for entry of

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default judgment and on July 29, 2013, he moved for judgment on

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the pleadings in regard to his motion for default judgment.

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nos. 9, 10, 12.

Doc. no. 7.

On March 25, 2013, Plaintiff

Doc.

On August 5, 2013, Defendants moved to quash

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Plaintiff's service of process, to set aside entry of default and

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to screen Plaintiff's FAC.

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16, 2013, Plaintiff moved for leave to submit supplementary

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evidence in support of his motion for entry of default judgment.

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United States District Court
For the Northern District of California

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Finally, on September

Doc. no. 25.
DISCUSSION

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Doc. no. 13.

I. Motion to Quash
Defendants Sayre and Thomas move to quash service of process,
under Federal Rule of Civil Procedure 55(c), on the ground that
the summons were defective because they did not name the court and
the parties to the action.
service of process.

The Court denies the motion to quash

Because Plaintiff has paid the filing fee and

is not proceeding in forma pauperis, he is required to serve
Defendants himself.

Because Defendants have received actual

notice of this lawsuit, the Court declines to quash service of
process on the negligible grounds they assert, which would require
Plaintiff to re-serve Defendants.

Therefore, the motion to quash

is DENIED.
II. Motion to Set Aside Entry of Default
Defendants move to set aside entry of default on the
following grounds: (1) PBSP Litigation Coordinator S. Soderlund
received the summons and FAC from the process server, but
inadvertently set the documents aside for several months, see
Soderlund Dec.; (2) Defendants Dr. Sayre and PA Thomas were not
notified of the lawsuit and were not given copies of the summons
and complaint until early July, 2013, see Sayre Dec., Thomas Dec.;
(3) As soon as Defendants were notified of the lawsuit, they

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promptly requested representation by counsel.

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Thomas Dec.

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See Sayre Dec.,

Under Rule 55(c) of the Federal Rules of Civil Procedure, the

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court may set aside an entry of default for good cause.

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by default is a drastic step appropriate in only extreme

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circumstances; a case should, whenever possible, be decided on the

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merits."

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615 F.3d 1085, 1089 (9th Cir. 2010).

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"Judgment

United States v. Signed Personal Check No. 730 of Mesle,

Defendants have shown that they were not engaged in culpable

United States District Court
For the Northern District of California

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behavior, and given the strong policy to decide cases on their

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merits, good cause is shown for setting aside the entry of

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default.

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The motion to set aside entry of default is GRANTED.

Because Defendants' motion to set aside default is granted,

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Plaintiff's motions seeking a default judgment are DENIED.

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III. Review of FAC

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The Court grants Defendants' motion to screen Plaintiff's
FAC.

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A. 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.

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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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28 U.S.C.

In its review, the court must identify any cognizable

Id.

Pro se pleadings must be liberally construed.

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1988).

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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.

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(1988).

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B.

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Plaintiff alleges that he suffered a gunshot injury inflicted

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

Plaintiff’s Allegations

by a corrections officer which caused his arm to be mangled.

United States District Court
For the Northern District of California

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Although his arm has been reconstructed through surgery, he still

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experiences severe pain.

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pain medication.

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2012, Defendants PA Thomas and Dr. Sayre cancelled Plaintiff's

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pain medication without examining Plaintiff and without providing

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alternate care.

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uncontrolled pain causes mobility restrictions and mental anguish.

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On November 7, 2012, Dr. Sayre intercepted a letter Plaintiff

In the past, he was prescribed adequate

However, on October 16, 2012 and October 30,

Defendants are aware that Plaintiff's

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had written to Dr. Jacobson because Dr. Sayre knew that Plaintiff

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was complaining about him.

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false information in Plaintiff's medical file to attempt to

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justify his discontinuance of Plaintiff's treatment.

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On November 9, 2012, Dr. Sayre entered

On November 19, 2012, PA Thomas filed a false Mental Health

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Referral for Plaintiff so that Plaintiff would appear to be

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mentally unstable in order to justify her deprivation of adequate

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medical care to Plaintiff.

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to see a doctor for his medical care.

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any access to medical care.

PA Thomas also did not allow Plaintiff

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This left Plaintiff without

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Plaintiff has filed numerous complaints against prison

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officials and has a pending case in the Del Norte Superior Court.

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Dr. Sayre told Plaintiff that he was discontinuing Plaintiff's

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medication because of his complaints.

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Plaintiff seeks an injunction requiring Defendants to provide

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him medical care for his chronic pain including adequate

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examinations, X-rays, MRIs, and consultation by a neurologist or

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orthopedist.

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He also seeks compensatory and punitive damages.

When Plaintiff’s allegations are construed liberally, they

United States District Court
For the Northern District of California

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state cognizable Eighth Amendment claims for deliberate

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indifference to his serious medical needs against Dr. Sayre and PA

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Thomas.

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v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).

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cognizable First Amendment claim for retaliation against Dr.

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Sayre.

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2005).

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IV.

See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin
They also state a

See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.

Consent or Declination to Proceed Before Magistrate Judge
In order to encourage the just, speedy and inexpensive

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determination of 42 U.S.C. § 1983 cases filed in this district,

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the parties may waive their right to proceed before a district

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judge and consent to proceed before a magistrate judge for all
purposes.

Attached to this Order is a Notice of Option to Consent

to Proceed Before United States Magistrate Judge and an Order
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requiring the parties to notify the Court whether they consent or
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decline to do so.

The parties shall complete the requisite

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consent or declination form and return it to the Court as set

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forth in paragraph 3 of the Conclusion of this Order.

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//

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Defendants' motion to quash is Denied.

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2.

Defendants' motions to set aside entry of default and to

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screen the FAC are granted.

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shall set aside the entry of default.

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3.

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4.

United States District Court
For the Northern District of California

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Plaintiff's motions are DENIED.

The Clerk of the Court

and 25.

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Doc. no. 13.

Doc. no. 13.

Doc. nos. 9, 10, 12,

Plaintiff states cognizable claims for deliberate

indifference to his serious medical needs against Dr. Sayre and PA
Thomas and a cognizable claim for retaliation against Dr. Sayre.
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No later than thirty days from the date of this Order,

all parties shall file their consent or declination to proceed
before a United States Magistrate Judge.

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6.

Defendants shall answer the complaint within twenty-one

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days from the date of this Order.

The following briefing schedule

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shall govern dispositive motions in this action:
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a.

No later than thirty days from the date their

answer is due, Defendants shall file a motion for summary judgment
or other dispositive motion.

If Defendants file a motion for

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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

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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
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

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provide Plaintiff with notice of what is required of him to oppose

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a summary judgment motion or a motion to dismiss for failure to

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exhaust administrative remedies.
b.

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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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United States District Court
For the Northern District of California

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date on which Defendants’ motion is filed.
Before filing his opposition, Plaintiff is advised to read
the notice that will be provided to him by Defendants when the
motion is filed, and Rule 56 of the Federal Rules of Civil
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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Plaintiff is cautioned that because he bears the 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’ summary judgment motion.

Such evidence

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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

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declaration.

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simply by repeating the allegations of his complaint.

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c.

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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7.

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
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the Federal Rules of Civil Procedure.

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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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Leave of the Court pursuant

All communications by Plaintiff with the Court must be

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served on Defendants, or Defendants’ counsel by mailing a true

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copy of the document to Defendants or Defendants’ counsel.

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United States District Court
For the Northern District of California

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9.

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.
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Extensions of time are not favored, though reasonable

extensions will be granted.

Any motion for an extension of time

must be filed no later than fourteen days prior to the deadline
sought to be extended.

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IT IS SO ORDERED.
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Dated: 9/24/2013

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________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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