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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER T. JACKSON,

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Plaintiff,

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D. BRIGHT, et al.,

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Defendants.
_______________________________________/

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INTRODUCTION

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United States District Court
For the Northern District of California

ORDER OF SERVICE

vs.

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Plaintiff, a state prisoner, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983

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No. C 12-06020 YGR (PR)

alleging that Defendants were deliberately indifferent to his serious medical needs.

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He also seeks leave to proceed in forma pauperis, which will be granted in a separate Order.

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Venue is proper because the events giving rise to the claim are alleged to have occurred at

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the Correctional Training Facility (CTF), which is located in this judicial district. See 28 U.S.C.

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§ 1391(b).
In his complaint, Plaintiff names the following Defendants at CTF: Chief Physician and

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Surgeon D. Bright; Chief Medical Officer R. Delgado; Chief Executive Officer G. Ellis; Registered

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Nurse L. Fernandez; Physicians Anise Adams and R. Javate; and "Does 1-10." Plaintiff seeks

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monetary damages.

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DISCUSSION
I.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that

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are frivolous, malicious, fail 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. Id. § 1915A(b)(1), (2). Pro se pleadings

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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:

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(1) that a right secured by the 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 under the color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).

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II.

Legal Claims

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A.

Deliberate Indifference Claim

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Deliberate indifference to serious medical needs violates the Eighth Amendment's

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proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976);

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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

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Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc); Jones v. Johnson, 781

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F.2d 769, 771 (9th Cir. 1986). A determination of "deliberate indifference" involves an examination

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of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's

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response to that need. See McGuckin, 974 F.2d at 1059. A "serious" medical need exists if the

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failure to treat a prisoner's condition could result in further significant injury or the "unnecessary

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and wanton infliction of pain." Id. (citing Estelle v. Gamble, 429 U.S. at 104). A prison official is

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deliberately indifferent if he or she knows that a prisoner faces a substantial risk of serious harm and

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disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825,

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837 (1994).

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Plaintiff's allegation that he suffers from "severe pain in his back caused by old injuries" --

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including "fractur[ing] his back in two places and in 2003 re-injur[ing] his back" -- supports an

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inference that he has serious medical needs. (Compl. at 3.) Liberally construed, Plaintiff's

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allegations that prison medical staff failed to provide adequate medical treatment for his condition --

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while he was housed there in 2012 -- state a cognizable deliberate indifference claim against the

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named Defendants. Accordingly, this claim may proceed against these Defendants.

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B.

Claims Against Doe Defendants

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Plaintiff identifies "Does 1-10" whose names he intends to learn through discovery. The use

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of Doe Defendants is not favored in the Ninth Circuit. See Gillespie v. Civiletti, 629 F.2d 637, 642

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(9th Cir. 1980). However, where the identity of alleged defendants cannot be known prior to the
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filing of a complaint the plaintiff should be given an opportunity through discovery to identify them.

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Id. Failure to afford the plaintiff such an opportunity is error. See Wakefield v. Thompson, 177 F.3d

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1160, 1163 (9th Cir. 1999). Accordingly, the claims against the Doe Defendants are DISMISSED

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from this action without prejudice. Should Plaintiff learn these Defendants' identities through

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discovery, he may move to file an amended complaint to add them as named defendants. See Brass

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v. County of Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir. 2003).
CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

United States District Court
For the Northern District of California

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Plaintiff states a cognizable Eighth Amendment claim for deliberate indifference to

serious medical needs against all named Defendants.

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2.

The claims against the Doe Defendants are DISMISSED WITHOUT PREJUDICE.

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3.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and

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all attachments thereto (docket no. 1) and a copy of this Order to: CTF Chief Physician and

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Surgeon D. Bright; CTF Chief Medical Officer R. Delgado; CTF Chief Executive Officer G.

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Ellis; CTF Registered Nurse L. Fernandez; and CTF Physicians Anise Adams and R. Javate.

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The Clerk of the Court shall also mail a copy of the complaint and a copy of this Order to the State

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Attorney General's Office in San Francisco. Additionally, the Clerk shall mail a copy of this Order

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to Plaintiff.

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4.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires

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them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant

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to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of

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Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of

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such service unless good cause be shown for their failure to sign and return the waiver form. If

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service is waived, this action will proceed as if Defendants had been served on the date that the

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waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve

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and file an answer before sixty-three (63) days from the date on which the request for waiver was

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sent. (This allows a longer time to respond than would be required if formal service of summons is
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necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that

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more completely describes the duties 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 before Defendants have been

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personally served, the Answer shall be due sixty-three (63) days from the date on which the request

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for waiver was sent or twenty-one (21) days from the date the waiver form is filed, whichever is

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later.

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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.

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No later than ninety-one (91) days from the date their answer is due,

United States District Court
For the Northern District of California

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Defendants shall file a motion for summary judgment or other dispositive motion. The motion must

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be supported by adequate factual documentation, must conform in all respects to Federal Rule of

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Civil Procedure 56, and must include as exhibits all records and incident reports stemming from the

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events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice so

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that Plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose

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the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand

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must be served concurrently with motion for summary judgment). A motion to dismiss for failure to

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exhaust available administrative remedies must be accompanied by a similar notice. Stratton v.

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Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out in

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Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), must be served concurrently with motion to

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dismiss for failure to exhaust available administrative remedies).

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If Defendants are of the opinion that this case cannot be resolved by summary judgment,

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they shall so inform the Court prior to the date the summary judgment motion is due. All papers

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filed with the Court shall be promptly served on Plaintiff.
b.

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Plaintiff's opposition to the dispositive motion shall be filed with the Court

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and served on Defendants no later than sixty-three (63) days after the date on which Defendants'

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motion is filed.

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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
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c.

Plaintiff is advised that a motion for summary judgment under Rule 56 of the

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Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do

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in order to oppose a motion for summary judgment. Generally, summary judgment must be granted

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when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that

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would affect the result of your case, the party who asked for summary judgment is entitled to

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judgment as a matter of law, which will end your case. When a party you are suing makes a motion

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for summary judgment that is properly supported by declarations (or other sworn testimony), you

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cannot simply rely on what your complaint says. Instead, you must set out specific facts in

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declarations, depositions, answers to interrogatories, or authenticated documents, as provided in

United States District Court
For the Northern District of California

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Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show

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that there is a genuine issue of material fact for trial. If you do not submit your own evidence in

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opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is

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granted, your case will be dismissed and there will be no trial. Rand, 154 F.3d at 962-63.

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Plaintiff also is advised that a motion to dismiss for failure to exhaust available

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administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without

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prejudice. You must "develop a record" and present it in your opposition in order to dispute any

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"factual record" presented by the defendants in their motion to dismiss. Wyatt, 315 F.3d at 1120

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n.14. You have the right to present any evidence to show that you did exhaust your available

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administrative remedies before coming to federal court. Such evidence may include:

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(1) declarations, which are statements signed under penalty of perjury by you or others who have

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personal knowledge of relevant matters; (2) authenticated documents -- documents accompanied by

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a declaration showing where they came from and why they are authentic, or other sworn papers such

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as answers to interrogatories or depositions; (3) statements in your complaint insofar as they were

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made under penalty of perjury and they show that you have personal knowledge of the matters state

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therein. In considering a motion to dismiss for failure to exhaust, the court can decide disputed

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issues of fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09.

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(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
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administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.)

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d.

the date Plaintiff's opposition is filed.

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Defendants shall file a reply brief no later than twenty-eight (28) days after

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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

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Procedure. Leave of the Court pursuant 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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7.

All communications by Plaintiff with the Court must be served on Defendants, or

United States District Court
For the Northern District of California

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Defendants' counsel once counsel has been designated, by mailing a true copy of the document to

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Defendants or Defendants' counsel.

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8.

It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address and must comply with the Court's orders in a timely fashion.

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Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes

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while an action is pending must promptly file a notice of change of address specifying the new

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address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail

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directed to the pro se party by the Court has been returned to the Court as not deliverable, and

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(2) the Court fails to receive within sixty days of this return a written communication from the pro

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se party indicating a current address. See L.R. 3-11(b).

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9.

Extensions of time are not favored, though reasonable extensions will be granted.

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Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

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deadline sought to be extended.

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IT IS SO ORDERED.
DATED: February 13, 2013

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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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G:\PRO-SE\YGR\CR.12\Jackson6020.service

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