Thornberry v. Ahmed et al

Filing 8

ORDER OF SERVICE Dispositive Motion due by 5/17/2013.. Signed by Judge Yvonne Gonzalez Rogers on 2/15/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 2/15/2013)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA DANIEL LEE THORNBERRY, 5 Plaintiff, 6 7 8 9 United States District Court For the Northern District of California ORDER OF SERVICE vs. Z. AHMED, et al., Defendants. _______________________________________/ INTRODUCTION 10 Plaintiff, a state prisoner, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 11 12 No. C 12-6129 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: CTF Chief Executive Officer G. 17 18 Ellis; CTF Physicians Z. Ahmed and Laurie Hedden; and "Director of California Correctional 19 Health Care Services." Plaintiff seeks monetary damages. 20 DISCUSSION 21 22 I. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that 25 are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary 26 relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings 27 must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). 28 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 1 (1) that a right secured by the Constitution or laws of the United States was violated, and 2 (2) that the alleged violation was committed by a person acting under the color of state law. West v. 3 Atkins, 487 U.S. 42, 48 (1988). 4 II. Legal Claims 5 A. Deliberate Indifference Claim 6 Deliberate indifference to serious medical needs violates the Eighth Amendment's 7 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); 8 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX 9 Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc); Jones v. Johnson, 781 United States District Court For the Northern District of California 10 F.2d 769, 771 (9th Cir. 1986). A determination of "deliberate indifference" involves an examination 11 of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's 12 response to that need. See McGuckin, 974 F.2d at 1059. A "serious" medical need exists if the 13 failure to treat a prisoner's condition could result in further significant injury or the "unnecessary 14 and wanton infliction of pain." Id. (citing Estelle v. Gamble, 429 U.S. at 104). A prison official is 15 deliberately indifferent if he or she knows that a prisoner faces a substantial risk of serious harm and 16 disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 17 837 (1994). 18 Plaintiff's allegation that he suffers from "chronic lower back pain along with severe leg pain 19 in left leg" supports an inference that he has serious medical needs. (Compl. at 3.) Liberally 20 construed, Plaintiff's allegations that prison medical staff failed to provide adequate medical 21 treatment for his condition -- while he was housed there in 2011 to 2012 -- state a cognizable 22 deliberate indifference claim against Defendants Ellis, Ahmed, and Hedden. Accordingly, this 23 claim may proceed against these Defendants. 24 B. Supervisory Liability Claim 25 Plaintiff sues Defendant "Director of California Correctional Health Care Services" in 26 his/her supervisory capacity. Plaintiff does not allege facts demonstrating that this Defendant 27 violated his federal rights, but seems to claim this Defendant is liable based on the conduct of 28 his/her subordinates. 2 There is, however, no respondeat superior liability under § 1983 solely because a defendant 1 2 is responsible for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th 3 Cir. 1989). A supervisor generally "is only liable for constitutional violations of his subordinates if 4 the supervisor participated in or directed the violations, or knew of the violations and failed to act to 5 prevent them." Id. A supervisor may also be held liable if he or she implemented "a policy so 6 deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the 7 constitutional violation." Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en 8 banc). 9 United States District Court For the Northern District of California 10 Plaintiff's supervisory liability claim against Defendant "Director of California Correctional Health Care Services" is therefore DISMISSED WITHOUT PREJUDICE. CONCLUSION 11 12 For the foregoing reasons, the Court orders as follows: 13 1. 14 15 16 17 Plaintiff states a cognizable Eighth Amendment claim for deliberate indifference to serious medical needs against Defendants Ellis, Ahmed, and Hedden. 2. Plaintiff's supervisory liability claim against Defendant "Director of California Correctional Health Care Services" is DISMISSED WITHOUT PREJUDICE. 3. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 18 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and 19 all attachments thereto (docket no. 1) and a copy of this Order to: CTF Chief Executive Officer G. 20 Ellis as well as CTF Physicians Z. Ahmed and Laurie Hedden. The Clerk of the Court shall also 21 mail a copy of the complaint and a copy of this Order to the State Attorney General's Office in San 22 Francisco. Additionally, the Clerk shall mail a copy of this Order to Plaintiff. 23 4. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires 24 them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant 25 to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of 26 Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of 27 such service unless good cause be shown for their failure to sign and return the waiver form. If 28 service is waived, this action will proceed as if Defendants had been served on the date that the 3 1 waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve 2 and file an answer before sixty-three (63) days from the date on which the request for waiver was 3 sent. (This allows a longer time to respond than would be required if formal service of summons is 4 necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that 5 more completely describes the duties of the parties with regard to waiver of service of the summons. 6 If service is waived after the date provided in the Notice but before Defendants have been 7 personally served, the Answer shall be due sixty-three (63) days from the date on which the request 8 for waiver was sent or twenty-one (21) days from the date the waiver form is filed, whichever is 9 later. United States District Court For the Northern District of California 10 11 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. 12 No later than ninety-one (91) days from the date their answer is due, 13 Defendants shall file a motion for summary judgment or other dispositive motion. The motion must 14 be supported by adequate factual documentation, must conform in all respects to Federal Rule of 15 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from the 16 events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice so 17 that Plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose 18 the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand 19 must be served concurrently with motion for summary judgment). A motion to dismiss for failure to 20 exhaust available administrative remedies must be accompanied by a similar notice. Stratton v. 21 Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out in 22 Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), must be served concurrently with motion to 23 dismiss for failure to exhaust available administrative remedies). 24 If Defendants are of the opinion that this case cannot be resolved by summary judgment, 25 they shall so inform the Court prior to the date the summary judgment motion is due. All papers 26 filed with the Court shall be promptly served on Plaintiff. 27 28 1 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). 4 1 b. Plaintiff's opposition to the dispositive motion shall be filed with the Court 2 and served on Defendants no later than sixty-three (63) days after the date on which Defendants' 3 motion is filed. 4 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 5 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do 6 in order to oppose a motion for summary judgment. Generally, summary judgment must be granted 7 when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that 8 would affect the result of your case, the party who asked for summary judgment is entitled to 9 judgment as a matter of law, which will end your case. When a party you are suing makes a motion United States District Court For the Northern District of California 10 for summary judgment that is properly supported by declarations (or other sworn testimony), you 11 cannot simply rely on what your complaint says. Instead, you must set out specific facts in 12 declarations, depositions, answers to interrogatories, or authenticated documents, as provided in 13 Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show 14 that there is a genuine issue of material fact for trial. If you do not submit your own evidence in 15 opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is 16 granted, your case will be dismissed and there will be no trial. Rand, 154 F.3d at 962-63. 17 Plaintiff also is advised that a motion to dismiss for failure to exhaust available 18 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 19 prejudice. You must "develop a record" and present it in your opposition in order to dispute any 20 "factual record" presented by the defendants in their motion to dismiss. Wyatt, 315 F.3d at 1120 21 n.14. You have the right to present any evidence to show that you did exhaust your available 22 administrative remedies before coming to federal court. Such evidence may include: 23 (1) declarations, which are statements signed under penalty of perjury by you or others who have 24 personal knowledge of relevant matters; (2) authenticated documents -- documents accompanied by 25 a declaration showing where they came from and why they are authentic, or other sworn papers such 26 as answers to interrogatories or depositions; (3) statements in your complaint insofar as they were 27 made under penalty of perjury and they show that you have personal knowledge of the matters state 28 therein. In considering a motion to dismiss for failure to exhaust, the court can decide disputed 5 1 2 issues of fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09. (The Rand and Wyatt/Stratton notices above do not excuse Defendants' obligation to serve 3 said notices again concurrently with motions to dismiss for failure to exhaust available 4 administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.) 5 6 d. the date Plaintiff's opposition is filed. 7 8 9 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 United States District Court For the Northern District of California 10 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose 11 Plaintiff and any other necessary witnesses confined in prison. 12 7. All communications by Plaintiff with the Court must be served on Defendants, or 13 Defendants' counsel once counsel has been designated, by mailing a true copy of the document to 14 Defendants or Defendants' counsel. 15 8. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 16 informed of any change of address and must comply with the Court's orders in a timely fashion. 17 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 18 while an action is pending must promptly file a notice of change of address specifying the new 19 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 20 directed to the pro se party by the Court has been returned to the Court as not deliverable, and 21 (2) the Court fails to receive within sixty days of this return a written communication from the pro 22 se party indicating a current address. See L.R. 3-11(b). 23 9. Extensions of time are not favored, though reasonable extensions will be granted. 24 Any motion for an extension of time must be filed no later than fourteen (14) days prior to the 25 deadline sought to be extended. 26 IT IS SO ORDERED. DATED: February 15, 2013 27 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 28 G:\PRO-SE\YGR\CR.12\Thornberry6129.service.wpd 6

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