Hollins v. Fishman et al

Filing 16

ORDER OF SERVICE. Signed by Judge Phyllis J. Hamilton on 3/21/14. (Attachments: # 1 Certificate/Proof of Service)(nahS, COURT STAFF) (Filed on 3/21/2014)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 MICHAEL HOLLINS, Plaintiff, 8 vs. 9 ORDER OF SERVICE DR. FISHMAN, et. al., Defendants. 11 For the Northern District of California United States District Court 10 No. C 13-5086 PJH (PR) / 12 Plaintiff, a detainee incarcerated at Maguire Correctional Facility has filed a pro se 13 civil rights complaint under 42 U.S.C. § 1983. Plaintiff’s original complaint was dismissed 14 with leave to amend and he has filed an amended complaint. 15 DISCUSSION 16 A. Standard of Review 17 Federal courts must engage in a preliminary screening of cases in which prisoners 18 seek redress from a governmental entity or officer or employee of a governmental entity. 19 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 20 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 21 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 22 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 23 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 25 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 26 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 27 grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations 28 omitted). Although in order to state a claim a complaint “does not need detailed factual 1 allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief' 2 requires more than labels and conclusions, and a formulaic recitation of the elements of a 3 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 4 above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 5 (citations omitted). A complaint must proffer "enough facts to state a claim to relief that is 6 plausible on its face." Id. at 570. The United States Supreme Court has recently explained 7 the “plausible on its face” standard of Twombly: “While legal conclusions can provide the 8 framework of a complaint, they must be supported by factual allegations. When there are 9 well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 11 For the Northern District of California United States District Court 10 679 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged deprivation was committed by a person acting under the 15 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. 17 18 Legal Claims Plaintiff states that staff at Napa State Hospital failed to protect him from another patient who assaulted him. 19 A pretrial detainee is not protected by the Eighth Amendment's proscription against 20 cruel and unusual punishment because he has not been convicted of a crime. See Bell v. 21 Wolfish, 441 U.S. 520, 535 & n.16 (1979). Pretrial detainees are protected from 22 punishment without due process, however, under the Due Process Clause of the 23 Fourteenth Amendment. See United States v. Salerno, 481 U.S. 739, 746-47 (1987); Bell, 24 441 U.S. at 535-36. The protections of the Due Process Clause are at least as great as 25 those of the Eighth Amendment. See Revere v. Massachusetts General Hosp., 463 U.S. 26 239, 244 (1983). In the Ninth Circuit, "deliberate indifference is the level of culpability that 27 pretrial detainees must establish for a violation of their personal security interests under the 28 [F]ourteenth [A]mendment." Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th 2 1 2 Cir. 1991) (en banc). A prisoner may state a § 1983 claim for failure to protect where the officials acted 3 with "deliberate indifference" to the threat of serious harm or injury to an inmate by another 4 prisoner, see Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Neither negligence nor 5 gross negligence will constitute deliberate indifference. See Farmer v. Brennan, 511 U.S. 6 825, 835-36 & n.4 (1994); Estelle v. Gamble, 429 U.S. 97, 106 (1976). A prison official 7 cannot be held liable unless the standard for criminal recklessness is met, i.e., the official 8 knows of and disregards an excessive risk to inmate health or safety by failing to take 9 reasonable steps to abate it. See Farmer at 837. Plaintiff states that he was assigned to a room with three other patients. One night 11 For the Northern District of California United States District Court 10 one of the other patients was talking to himself incoherently and appeared to be fighting 12 with an imaginary person. Plaintiff requested to be moved to a different room because he 13 feared for his safety and he was moved to a different room in the same wing by Nurse 14 Lawrence. Approximately two weeks later while in his new room, the same patient who 15 plaintiff feared, appeared in his room and assaulted plaintiff by hitting him about the face, 16 head and chest. The patient was removed by staff and then returned ten minutes later and 17 once again assaulted plaintiff by hitting him in the face and head. Plaintiff states he 18 suffered a swollen eye and cuts to his mouth. This claim is sufficient to proceed against 19 Nurse Lawrence for failure to protect.1 20 CONCLUSION 21 1. The clerk shall issue a summons and the United States Marshal shall serve, 22 without prepayment of fees, copies of the amended complaint (Docket No. 15) with 23 attachments and copies of this order on the following defendants: Nurse Lawrence at Napa 24 State Hospital. 25 2. In order to expedite the resolution of this case, the court orders as follows: 26 1 27 28 Plaintiff attempted to raise a claim regarding inadequate medical care but has again failed to identify any specific defendant. Plaintiff has filed 14 cases in the last few months and has been informed on many occasions that he must identify specific defendants. This claim is dismissed. 3 1 a. No later than sixty days from the date of service, defendants shall file a 2 motion for summary judgment or other dispositive motion. The motion shall be supported 3 by adequate factual documentation and shall conform in all respects to Federal Rule of 4 Civil Procedure 56, and shall include as exhibits all records and incident reports stemming 5 from the events at issue. If defendant is of the opinion that this case cannot be resolved by 6 summary judgment, she shall so inform the court prior to the date her summary judgment 7 motion is due. All papers filed with the court shall be promptly served on the plaintiff. 8 b. At the time the dispositive motion is served, defendant shall also serve, on 9 a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 11 For the Northern District of California United States District Court 10 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and 12 Wyatt notices must be given at the time motion for summary judgment or motion to dismiss 13 for nonexhaustion is filed, not earlier); Rand at 960 (separate paper requirement). c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 14 15 court and served upon defendants no later than thirty days from the date the motion was 16 served upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” 17 which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 18 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 19 If defendant files an unenumerated motion to dismiss claiming that plaintiff failed to 20 exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff 21 should take note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” 22 which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th 23 Cir. 2003). 24 25 26 27 28 d. If defendant wishes to file a reply brief, she shall do so no later than fifteen days after the opposition is served upon her. 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. 3. All communications by plaintiff with the court must be served on defendant, or 4 1 defendant’s counsel once counsel has been designated, by mailing a true copy of the 2 document to defendants or defendants' counsel. 3 4. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 4 No further court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 5 parties may conduct discovery. 6 5. It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 7 informed of any change of address by filing a separate paper with the clerk headed “Notice 8 of Change of Address.” He also must comply with the court's orders in a timely fashion. 9 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 11 For the Northern District of California United States District Court 10 12 Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. Dated: March 21, 2014. PHYLLIS J. HAMILTON United States District Judge 13 14 G:\PRO-SE\PJH\CR.13\Hollins5086.serve.wpd 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary 6 judgment. Generally, summary judgment must be granted when there is no genuine issue 7 of material fact--that is, if there is no real dispute about any fact that would affect the result 8 of your case, the party who asked for summary judgment is entitled to judgment as a matter 9 of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot 11 For the Northern District of California United States District Court 10 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 13 provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and 14 documents and show that there is a genuine issue of material fact for trial. If you do not 15 submit your own evidence in opposition, summary judgment, if appropriate, may be entered 16 against you. If summary judgment is granted, your case will be dismissed and there will be 17 no trial. 18 NOTICE -- WARNING (EXHAUSTION) 19 If defendants file an unenumerated motion to dismiss for failure to exhaust, they are 20 seeking to have your case dismissed. If the motion is granted it will end your case. 21 You have the right to present any evidence you may have which tends to show that 22 you did exhaust your administrative remedies. Such evidence may be in the form of 23 declarations (statements signed under penalty of perjury) or authenticated documents, that 24 is, documents accompanied by a declaration showing where they came from and why they 25 are authentic, or other sworn papers, such as answers to interrogatories or depositions. 26 If defendants file a motion to dismiss and it is granted, your case will be dismissed 27 and there will be no trial. 28 6

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