Jackson v. Bright et al

Filing 5

ORDER OF SERVICE Dispositive Motion due by 5/15/2013. Signed by Judge Yvonne Gonzalez Rogers on 2/13/2013. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 2/13/2013)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 CHRISTOPHER T. JACKSON, 5 Plaintiff, 6 D. BRIGHT, et al., 8 Defendants. _______________________________________/ 9 INTRODUCTION 10 United States District Court For the Northern District of California ORDER OF SERVICE vs. 7 Plaintiff, a state prisoner, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 11 12 No. C 12-06020 YGR (PR) alleging that Defendants were deliberately indifferent to his serious medical needs. 13 He also seeks leave to proceed in forma pauperis, which will be granted in a separate Order. 14 Venue is proper because the events giving rise to the claim are alleged to have occurred at 15 the Correctional Training Facility (CTF), which is located in this judicial district. See 28 U.S.C. 16 § 1391(b). In his complaint, Plaintiff names the following Defendants at CTF: Chief Physician and 17 18 Surgeon D. Bright; Chief Medical Officer R. Delgado; Chief Executive Officer G. Ellis; Registered 19 Nurse L. Fernandez; Physicians Anise Adams and R. Javate; and "Does 1-10." Plaintiff seeks 20 monetary damages. 21 22 23 DISCUSSION I. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks 24 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 25 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that 26 are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary 27 relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings 28 must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 1 2 (1) that a right secured by the Constitution or laws of the United States was violated, and 3 (2) that the alleged violation was committed by a person acting under the color of state law. West v. 4 Atkins, 487 U.S. 42, 48 (1988). 5 II. Legal Claims 6 A. Deliberate Indifference Claim 7 Deliberate indifference to serious medical needs violates the Eighth Amendment's 8 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); 9 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX United States District Court For the Northern District of California 10 Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc); Jones v. Johnson, 781 11 F.2d 769, 771 (9th Cir. 1986). A determination of "deliberate indifference" involves an examination 12 of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's 13 response to that need. See McGuckin, 974 F.2d at 1059. A "serious" medical need exists if the 14 failure to treat a prisoner's condition could result in further significant injury or the "unnecessary 15 and wanton infliction of pain." Id. (citing Estelle v. Gamble, 429 U.S. at 104). A prison official is 16 deliberately indifferent if he or she knows that a prisoner faces a substantial risk of serious harm and 17 disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 18 837 (1994). 19 Plaintiff's allegation that he suffers from "severe pain in his back caused by old injuries" -- 20 including "fractur[ing] his back in two places and in 2003 re-injur[ing] his back" -- supports an 21 inference that he has serious medical needs. (Compl. at 3.) Liberally construed, Plaintiff's 22 allegations that prison medical staff failed to provide adequate medical treatment for his condition -- 23 while he was housed there in 2012 -- state a cognizable deliberate indifference claim against the 24 named Defendants. Accordingly, this claim may proceed against these Defendants. 25 B. Claims Against Doe Defendants 26 Plaintiff identifies "Does 1-10" whose names he intends to learn through discovery. The use 27 of Doe Defendants is not favored in the Ninth Circuit. See Gillespie v. Civiletti, 629 F.2d 637, 642 28 (9th Cir. 1980). However, where the identity of alleged defendants cannot be known prior to the 2 1 filing of a complaint the plaintiff should be given an opportunity through discovery to identify them. 2 Id. Failure to afford the plaintiff such an opportunity is error. See Wakefield v. Thompson, 177 F.3d 3 1160, 1163 (9th Cir. 1999). Accordingly, the claims against the Doe Defendants are DISMISSED 4 from this action without prejudice. Should Plaintiff learn these Defendants' identities through 5 discovery, he may move to file an amended complaint to add them as named defendants. See Brass 6 v. County of Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir. 2003). 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 Plaintiff states a cognizable Eighth Amendment claim for deliberate indifference to serious medical needs against all named Defendants. 11 2. The claims against the Doe Defendants are DISMISSED WITHOUT PREJUDICE. 12 3. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 13 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and 14 all attachments thereto (docket no. 1) and a copy of this Order to: CTF Chief Physician and 15 Surgeon D. Bright; CTF Chief Medical Officer R. Delgado; CTF Chief Executive Officer G. 16 Ellis; CTF Registered Nurse L. Fernandez; and CTF Physicians Anise Adams and R. Javate. 17 The Clerk of the Court shall also mail a copy of the complaint and a copy of this Order to the State 18 Attorney General's Office in San Francisco. Additionally, the Clerk shall mail a copy of this Order 19 to Plaintiff. 20 4. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires 21 them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant 22 to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of 23 Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of 24 such service unless good cause be shown for their failure to sign and return the waiver form. If 25 service is waived, this action will proceed as if Defendants had been served on the date that the 26 waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve 27 and file an answer before sixty-three (63) days from the date on which the request for waiver was 28 sent. (This allows a longer time to respond than would be required if formal service of summons is 3 1 necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that 2 more completely describes the duties of the parties with regard to waiver of service of the summons. 3 If service is waived after the date provided in the Notice but before Defendants have been 4 personally served, the Answer shall be due sixty-three (63) days from the date on which the request 5 for waiver was sent or twenty-one (21) days from the date the waiver form is filed, whichever is 6 later. 7 8 5. Defendants shall answer the complaint in accordance with the Federal Rules of Civil Procedure. The following briefing schedule shall govern dispositive motions in this action: a. 9 No later than ninety-one (91) days from the date their answer is due, United States District Court For the Northern District of California 10 Defendants shall file a motion for summary judgment or other dispositive motion. The motion must 11 be supported by adequate factual documentation, must conform in all respects to Federal Rule of 12 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from the 13 events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice so 14 that Plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose 15 the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand 16 must be served concurrently with motion for summary judgment). A motion to dismiss for failure to 17 exhaust available administrative remedies must be accompanied by a similar notice. Stratton v. 18 Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out in 19 Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), must be served concurrently with motion to 20 dismiss for failure to exhaust available administrative remedies). 21 If Defendants are of the opinion that this case cannot be resolved by summary judgment, 22 they shall so inform the Court prior to the date the summary judgment motion is due. All papers 23 filed with the Court shall be promptly served on Plaintiff. b. 24 Plaintiff's opposition to the dispositive motion shall be filed with the Court 25 and served on Defendants no later than sixty-three (63) days after the date on which Defendants' 26 motion is filed. 27 28 1 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). 4 1 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 2 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do 3 in order to oppose a motion for summary judgment. Generally, summary judgment must be granted 4 when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that 5 would affect the result of your case, the party who asked for summary judgment is entitled to 6 judgment as a matter of law, which will end your case. When a party you are suing makes a motion 7 for summary judgment that is properly supported by declarations (or other sworn testimony), you 8 cannot simply rely on what your complaint says. Instead, you must set out specific facts in 9 declarations, depositions, answers to interrogatories, or authenticated documents, as provided in United States District Court For the Northern District of California 10 Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show 11 that there is a genuine issue of material fact for trial. If you do not submit your own evidence in 12 opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is 13 granted, your case will be dismissed and there will be no trial. Rand, 154 F.3d at 962-63. 14 Plaintiff also is advised that a motion to dismiss for failure to exhaust available 15 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 16 prejudice. You must "develop a record" and present it in your opposition in order to dispute any 17 "factual record" presented by the defendants in their motion to dismiss. Wyatt, 315 F.3d at 1120 18 n.14. You have the right to present any evidence to show that you did exhaust your available 19 administrative remedies before coming to federal court. Such evidence may include: 20 (1) declarations, which are statements signed under penalty of perjury by you or others who have 21 personal knowledge of relevant matters; (2) authenticated documents -- documents accompanied by 22 a declaration showing where they came from and why they are authentic, or other sworn papers such 23 as answers to interrogatories or depositions; (3) statements in your complaint insofar as they were 24 made under penalty of perjury and they show that you have personal knowledge of the matters state 25 therein. In considering a motion to dismiss for failure to exhaust, the court can decide disputed 26 issues of fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09. 27 28 (The Rand and Wyatt/Stratton notices above do not excuse Defendants' obligation to serve said notices again concurrently with motions to dismiss for failure to exhaust available 5 1 administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.) 2 3 d. the date Plaintiff's opposition is filed. 4 5 6 Defendants shall file a reply brief no later than twenty-eight (28) days after 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. 6. Discovery may be taken in this action in accordance with the Federal Rules of Civil 7 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose 8 Plaintiff and any other necessary witnesses confined in prison. 9 7. All communications by Plaintiff with the Court must be served on Defendants, or United States District Court For the Northern District of California 10 Defendants' counsel once counsel has been designated, by mailing a true copy of the document to 11 Defendants or Defendants' counsel. 12 8. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 13 informed of any change of address and must comply with the Court's orders in a timely fashion. 14 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 15 while an action is pending must promptly file a notice of change of address specifying the new 16 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 17 directed to the pro se party by the Court has been returned to the Court as not deliverable, and 18 (2) the Court fails to receive within sixty days of this return a written communication from the pro 19 se party indicating a current address. See L.R. 3-11(b). 20 9. Extensions of time are not favored, though reasonable extensions will be granted. 21 Any motion for an extension of time must be filed no later than fourteen (14) days prior to the 22 deadline sought to be extended. 23 24 IT IS SO ORDERED. DATED: February 13, 2013 25 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 26 27 28 G:\PRO-SE\YGR\CR.12\Jackson6020.service 6

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