Cruz v. Betancourt

Filing 9

ORDER OF SERVICE Habeas Answer or Dispositive Motion due by 6/13/2016.. Signed by Magistrate Judge Kandis A. Westmore on 4/13/16. (Attachments: # 1 Certificate/Proof of Service)(sisS, COURT STAFF) (Filed on 4/13/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SANTIAGO CRUZ,

Case No. 16-cv-00152-KAW (PR)

Plaintiff,
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ORDER OF SERVICE

v.
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BETANCOURT,
Defendant.

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Plaintiff Santiago Cruz, a state prisoner incarcerated at the California Training Facility

United States District Court
Northern District of California

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(“CTF”) in Soledad, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the

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violation of his constitutional rights by Correctional Officer C. Betancourt, an employee at CTF-

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Soledad. Plaintiff has consented to the jurisdiction of the undersigned United States Magistrate

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Judge over this action. Plaintiff has filed a motion for leave to proceed in forma pauperis (“IFP”),

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which is granted in a separate order. The Court now addresses the claims asserted in Plaintiff’s

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complaint.

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DISCUSSION
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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

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

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

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

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Cir. 1988).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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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).
Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the

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plaintiff can show that the defendant’s actions both actually and proximately caused the

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deprivation of a federally protected right. Lemire v. Caifornia Dep’t of Corrections &

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Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.

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1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives

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another of a constitutional right within the meaning of § 1983 if he does an affirmative act,

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participates in another's affirmative act or omits to perform an act which he is legally required to
do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633.

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United States District Court
Northern District of California

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II.

Plaintiff’s Claims

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In his complaint, Plaintiff alleges the following:

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Plaintiff recently had surgery for removal of a brain tumor. As a result, he suffers from

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mood swings, verbal outbursts and loss of memory and cognition. Officer Betancourt had full

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knowledge of Plaintiff’s medical issues. However, on May 5, 2014, Betancourt, who is

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responsible for maintaining security in the dayroom, orchestrated an attack upon Plaintiff by

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failing to supervise the dayroom and, thus, allowed an inmate to attack Plaintiff. This inmate

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punched Plaintiff several times in the head and face and slammed him head first on the cement

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floor. While Plaintiff was on the floor, the inmate drove his knee into Plaintiff’s ribs. As a result,

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Plaintiff suffered four broken ribs.

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Plaintiff alleges that Betancourt undertook this action in retaliation for Plaintiff filing

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grievances against prison employees. Plaintiff also alleges that Betancourt retaliates against him

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by unreasonably searching his cell, improperly confiscating numerous items from his cell and

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threatening him with more of the same.

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Liberally construed, these allegations appear to state a cognizable First Amendment

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retaliation claim and a cognizable Eighth Amendment deliberate indifference to safety claim

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against Betancourt.

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CONCLUSION

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Based on the foregoing, the Court issues the following Orders:

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1. Plaintiff states a cognizable First Amendment retaliation claim and an Eighth

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Amendment deliberate indifference to safety claim against Officer Betancourt.
2. 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

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(docket no. 1) and all attachments thereto, a copy of this Order, and a copy of the form “Consent

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or Declination to Magistrate Judge Jurisdiction” to Officer C. Betancourt at CTF-Soledad. This

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form can also be found at www.cand.uscourts.gov/civilforms. The Clerk shall also mail a copy of
the complaint and a copy of this Order to the State Attorney General’s Office in San Francisco,

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United States District Court
Northern District of California

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and a copy of this Order to Plaintiff.

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

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

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Rule 4, if Defendant, 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, fails to do so, he will be required to bear the cost of

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

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

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waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), Defendant will not be required to

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

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

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necessary.)

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Defendant is advised to read the statement set forth at the foot of the waiver form that more

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

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

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served, the answer shall be due sixty days from the date on which the request for waiver was sent

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or twenty days from the date the waiver form is filed, whichever is later.

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4. Defendant shall file his Consent or Declination to Magistrate Judge Jurisdiction on or
before the date his answer is due.
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5. The following briefing schedule shall govern dispositive motions in this action:
a. No later than thirty days from the date his answer is due, Defendant shall file a

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motion for summary judgment or other dispositive motion. If Defendant files a motion for

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summary judgment, it shall be supported by adequate factual documentation and shall conform in

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all respects to Federal Rule of Civil Procedure 56. If Defendant is of the opinion that this case

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cannot be resolved by summary judgment, he shall so inform the Court prior to the date the

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summary judgment motion is due. All papers filed with the Court shall be promptly served on

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Plaintiff.

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At the time of filing the motion for summary judgment or other dispositive motion,
Defendant shall comply with the Ninth Circuit’s decision in Woods v. Carey, 684 F.3d 934 (9th

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United States District Court
Northern District of California

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Cir. 2012), and provide Plaintiff with notice of what is required of him to oppose a summary

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judgment motion. If the motion is based on non-exhaustion of administrative remedies,

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Defendants must comply with the notice and procedural requirements in Albino v. Baca, 747 F.3d

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1162 (9th Cir. 2014). See Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012).

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b. Plaintiff’s opposition to the motion for summary judgment or other dispositive

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motion shall be filed with the Court and served on Defendant no later than twenty-eight days after

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the date on which Defendant’s motion is filed. The Ninth Circuit has held that the following notice

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should be given to pro se plaintiffs facing a summary judgment motion:

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The defendants have made a motion for summary judgment by which they seek to have
your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules
of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary judgment.
Generally, summary judgment must be granted when there is no genuine issue of material
fact -- that is, if there is no real dispute about any fact that would affect the result of your
case, the party who asked for summary judgment is entitled to judgment as a matter 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
simply rely on what your complaint says. Instead, you must set out specific facts in
declarations, depositions, answers to interrogatories, or authenticated documents, as
provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and
documents and show that there is a genuine issue of material fact for trial. If you do not
submit your own evidence in opposition, summary judgment, if appropriate, may be
entered against you. If summary judgment is granted [in favor of the defendants], your
case will be dismissed and there will be no trial.
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Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc).
Before filing his opposition, Plaintiff is advised to read the notice that will be provided to
him by Defendant when the motion is filed, and Rule 56 of the Federal Rules of Civil Procedure

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and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come

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forward with evidence showing triable issues of material fact on every essential element of his

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claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this

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case, he must be prepared to produce evidence in support of those allegations when he files his

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opposition to Defendant’s summary judgment motion. Such evidence may include sworn

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declarations from himself and other witnesses to the incident, copies of documents authenticated

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by sworn declaration or discovery. Plaintiff will not be able to avoid summary judgment simply

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United States District Court
Northern District of California

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by repeating the allegations of his complaint.

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The same evidentiary requirement applies if the defendants file a motion for summary

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judgment for failure to exhaust administrative remedies. To oppose this motion, Plaintiff must

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present any evidence he may have which tends to show that he did exhaust administrative

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remedies or was excused from doing so. Again, the evidence may be in the form of declarations,

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that is statements of fact from himself or other witnesses signed under penalty of perjury, copies of

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documents accompanied by a declaration showing where they came from and why they are

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authentic, or discovery documents such as answers to interrogatories or depositions. In

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considering a summary judgment motion for failure to exhaust administrative remedies, the Court

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can decide disputed issues of fact with regard to this portion of the case. See generally Albino,

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747 F.3d at 1172-73; Stratton, 697 F.3d at 1008.

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c. Defendant shall file a reply brief no later than fourteen days after the date
Plaintiff’s opposition is filed.
d. 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. No further court order pursuant to Rule 30(a)(2) or Local Rule 16 is required before

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the parties may conduct discovery.
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7. All communications by Plaintiff with the Court must be served on Defendant, or

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

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Defendant or his 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 by filing a separate paper with the clerk headed “Notice of

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Change of Address,” and must comply with the Court's orders in a timely fashion. Failure to do so

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may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

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Procedure 41(b).

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9. Extensions of time are not favored, though reasonable extensions will be granted. Any
motion for an extension of time must be filed no later than fourteen days prior to the deadline

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United States District Court
Northern District of California

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sought to be extended.

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IT IS SO ORDERED.
Dated: April 13, 2016
______________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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