Leer v. Goulart

Filing 8

ORDER OF SERVICE. Signed by Magistrate Judge Donna M. Ryu on 9/15/14. (ig, COURT STAFF) (Filed on 9/15/2014)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

RIKKI T. LEER,
Plaintiff,

United States District Court
For the Northern District of California

10

ORDER OF SERVICE

vs.

11
12

No. C 14-3309 DMR (PR)

SAN MATEO COUNTY SHERIFF'S DEPUTY
J. GOULART,
Defendant.

13

/

14
Plaintiff, who is currently incarcerated at High Desert State Prison, has filed a pro se civil

15
16

rights action pursuant to 42 U.S.C. § 1983 stemming from an incident during his previous

17

incarceration at the San Mateo County Jail (“SMCJ”). Plaintiff has consented to magistrate judge

18

jurisdiction, and this matter has been assigned to the undersigned Magistrate Judge.
His motion for leave to proceed in forma pauperis will be granted in a separate written

19
20

Order.
Venue is proper because the events giving rise to the claims are alleged to have occurred at

21
22

SMCJ, which is located in this judicial district. See 28 U.S.C. § 1391(b).
In his complaint, Plaintiff names San Mateo County Sheriff's Deputy J. Goulart. Plaintiff

23
24

seeks declaratory relief and monetary damages.
DISCUSSION

25
26
27
28

I.

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

redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that

1

are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary

2

relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings

3

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

4

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

5

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the

6

alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487

7

U.S. 42, 48 (1988).

8

II.

9

Excessive Force Claim
Plaintiff alleges that on July 13, 2012, Defendant Goulart, who worked as a housing officer

United States District Court
For the Northern District of California

10

at SMCJ, used excessive force when he attacked Plaintiff from behind using "handcuffs as if they

11

were brass knuckles," causing injury to Plaintiff. Dkt. 1 at 3. Plaintiff claims that he did nothing to

12

provoke Defendant Goulart to use such force. Id. Liberally construed, Plaintiff's claim is

13

cognizable under § 1983 as a violation of his Eighth Amendment right against cruel and unusual

14

punishment.

15

CONCLUSION

16

For the foregoing reasons, the Court orders as follows:

17

1.

18
19

Plaintiff's allegations state a cognizable excessive force claim against Defendant

Goulart.
2.

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

20

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

21

all attachments thereto (dkt. 1), a Magistrate Judge jurisdiction consent form, and a copy of this

22

Order to: San Mateo County Sheriff's Deputy J. Goulart. The Clerk of the Court shall also mail a

23

copy of the complaint and a copy of this Order to the San Mateo County Counsel's Office.

24

Additionally, the Clerk shall mail a copy of this Order to Plaintiff.

25

3.

Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires

26

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

27

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

28

of Plaintiff, to waive service of the summons, fails to do so, Defendant will be required to bear the
2

1

cost of such service unless good cause be shown for Defendant's failure to sign and return the waiver

2

form. If service is waived, this action will proceed as if Defendant had been served on the date that

3

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

4

and file an answer before sixty (60) days from the date on which the request for waiver was sent.

5

(This allows a longer time to respond than would be required if formal service of summons is

6

necessary.) Defendant is asked to read the statement set forth at the foot of the waiver form that

7

more completely describes the duties of the parties with regard to waiver of service of the summons.

8

If service is waived after the date provided in the Notice but before Defendant has been personally

9

served, the Answer shall be due sixty (60) days from the date on which the request for waiver was

United States District Court
For the Northern District of California

10

sent or twenty (20) days from the date the waiver form is filed, whichever is later. Defendant shall

11

also respond to the Notice of Assignment of Prisoner Case to a United States Magistrate Judge

12

for Trial by filing a consent/declination form on the date the Answer is due.

13
14

4.

Defendant 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.

15

No later than sixty (60) days from the date the answer is due, Defendant shall

16

file a motion for summary judgment or other dispositive motion. The motion must be supported by

17

adequate factual documentation, must conform in all respects to Federal Rule of Civil Procedure 56,

18

and must include as exhibits all records and incident reports stemming from the events at issue. A

19

motion for summary judgment also must be accompanied by a Rand1 notice so that Plaintiff will

20

have fair, timely and adequate notice of what is required of him in order to oppose the motion.

21

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

22

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

23

available administrative remedies must be accompanied by a similar notice. However, the Court

24

notes that under the new law of the circuit, in the rare event that a failure to exhaust is clear on the

25

face of the complaint, Defendant may move for dismissal under Rule 12(b)(6) as opposed to the

26

previous practice of moving under an unenumerated Rule 12(b) motion. Albino, 747 F.3d at 1166

27
28

1

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

(overruling Wyatt, 315 F.3d at 1119, which held that failure to exhaust available administrative

2

remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"), should be raised

3

by a defendant as an unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear

4

on the face of the complaint, Defendant must produce evidence proving failure to exhaust in a

5

motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most

6

favorable to Plaintiff shows a failure to exhaust, Defendant is entitled to summary judgment under

7

Rule 56. Id. But if material facts are disputed, summary judgment should be denied and the district

8

judge rather than a jury should determine the facts in a preliminary proceeding. Id. at 1168.

9

Defendant is of the opinion that this case cannot be resolved by summary judgment, Defendant shall

10
United States District Court
For the Northern District of California

1

so inform the Court prior to the date the summary judgment motion is due. All papers filed with the

11

Court shall be promptly served on Plaintiff.

12

b.

If

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

13

and served on Defendant no later than twenty-eight (28) days after the date on which Defendant's

14

motion is filed.

15

c.

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

Plaintiff also is advised that -- in the rare event that Defendant argues that the failure to
4

1

exhaust is clear on the face of the complaint -- a motion to dismiss for failure to exhaust available

2

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

3

prejudice. To avoid dismissal, you have the right to present any evidence to show that you did

4

exhaust your available administrative remedies before coming to federal court. Such evidence may

5

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

6

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

7

accompanied by a declaration showing where they came from and why they are authentic, or other

8

sworn papers such as answers to interrogatories or depositions; (3) statements in your complaint

9

insofar as they were made under penalty of perjury and they show that you have personal knowledge

United States District Court
For the Northern District of California

10

of the matters state therein. As mentioned above, in considering a motion to dismiss for failure to

11

exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment motion under Rule 56, the

12

district judge may hold a preliminary proceeding and decide disputed issues of fact with regard to

13

this portion of the case. Albino, 747 F.3d at 1168.
(The notices above do not excuse Defendant's obligation to serve similar notices again

14
15

concurrently with motions to dismiss for failure to exhaust available administrative remedies and

16

motions for summary judgment. Woods, 684 F.3d at 935.)
d.

17
18

date Plaintiff's opposition is filed.
e.

19
20

Defendant shall file a reply brief no later than fourteen (14) days after the

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.
5.

21

Discovery may be taken in this action in accordance with the Federal Rules of Civil

22

Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendant to depose

23

Plaintiff and any other necessary witnesses confined in prison.
6.

24

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

25

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

26

them.

27
28

7.

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

informed of any change of address and must comply with the Court's orders in a timely fashion.
5

1

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

2

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

3

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

4

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

5

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

6

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

7

8.

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

8

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

9

deadline sought to be extended.

United States District Court
For the Northern District of California

10
11

IT IS SO ORDERED.
Dated: September 15, 2014

12
DONNA M. RYU
United States Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
P:\PRO-SE\DMR\CR.14\Leer3309.service.wpd

6