Thao v. California Prison Industry Authority et al

Filing 9

ORDER OF SERVICE. Signed by Judge Phyllis J. Hamilton on 4/22/16. (Certificate of Service Attached) (napS, COURT STAFF) (Filed on 4/22/2016) Modified on 4/22/2016 (napS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NOU THAO,

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Plaintiff,

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ORDER OF SERVICE

v.

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CALIFORNIA PRISON INDUSTRY
AUTHORITY, et al.,

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United States District Court
Northern District of California

Case No. 16-cv-01098-PJH

Defendants.

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. §
1983. He has been granted leave to proceed in forma pauperis.

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DISCUSSION
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STANDARD OF REVIEW
Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief

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may be granted, or seek monetary relief from a defendant who is immune from such

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relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007)

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(citations omitted). Although in order to state a claim a complaint “does not need detailed

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factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment]

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to relief' requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do. . . . Factual allegations must be enough to

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raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state

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a claim to relief that is plausible on its face." Id. at 570. The United States Supreme

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Court has recently explained the “plausible on its face” standard of Twombly: “While legal

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conclusions can provide the framework of a complaint, they must be supported by factual

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allegations. When there are well-pleaded factual allegations, a court should assume their

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United States District Court
Northern District of California

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veracity and then determine whether they plausibly give rise to an entitlement to relief.”

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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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LEGAL CLAIMS

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Plaintiff states that he was exposed to lead paint and asbestos while working in a

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prison facility.

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Deliberate indifference to an inmate's health or safety violates the Eighth

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Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the

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Eighth Amendment only when two requirements are met: (1) the deprivation alleged is,

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objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent

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to the inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).

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Under the deliberate indifference standard, the prison official must not only "be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm

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exists," but "must also draw the inference." Id. at 837.

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Plaintiff states that in May and early June 2012 he was required to clean and work

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in an area containing lead paint and asbestos. He was not given proper protective

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clothing and the wrong type of mask. While he was provided a shower he was not given

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fresh clothing and had to wear the same clothing that was exposed to the lead paint and

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asbestos. Plaintiff does not describe any health effects but states prison officials will not

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have him tested and he continues to be exposed to asbestos. Plaintiff seeks money

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damages and injunctive relief. Liberally construed, plaintiff’s claims for exposure to lead

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paint and asbestos and failure to have him tested are sufficient to proceed.
CONCLUSION

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1. The clerk shall issue a summons and the United States Marshal shall serve,

United States District Court
Northern District of California

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without prepayment of fees, copies of the complaint with attachments and copies of this

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order on the following defendants, who apparently work in the Prison Industries Section

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of San Quentin State Prison (CAL-PIA): Joe Dobie, Gary Loredo, Brad Smith, Jeremy

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Young, and Philip Early.

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2. In order to expedite the resolution of this case, the court orders as follows:
a. No later than sixty days from the date of service, defendants shall file a

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motion for summary judgment or other dispositive motion. The motion shall be supported

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by adequate factual documentation and shall conform in all respects to Federal Rule of

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Civil Procedure 56, and shall include as exhibits all records and incident reports

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stemming from the events at issue. If defendant is of the opinion that this case cannot be

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resolved by summary judgment, she shall so inform the court prior to the date her

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

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on the plaintiff.

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b. At the time the dispositive motion is served, defendants shall also serve,

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on a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154

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F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120

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n. 4 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand

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and Wyatt notices must be given at the time motion for summary judgment or motion to
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dismiss 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

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the court and served upon defendants no later than thirty days from the date the motion

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was served upon him. Plaintiff must read the attached page headed "NOTICE --

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WARNING," which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-

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954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.

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1988).

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If defendants file a motion for summary judgment claiming that plaintiff failed to
exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),
plaintiff should take note of the attached page headed "NOTICE -- WARNING

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United States District Court
Northern District of California

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(EXHAUSTION)," which is provided to him as required by Wyatt v. Terhune, 315 F.3d

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1108, 1120 n. 4 (9th Cir. 2003).

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d. If defendant wishes to file a reply brief, he 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

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defendant’s counsel once counsel has been designated, by mailing a true copy of the

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document to defendants or defendants' counsel.

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4. Discovery may be taken in accordance with the Federal Rules of Civil

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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) is

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required before the parties may conduct discovery.

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5. 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

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“Notice of Change of Address.” He also must comply with the court's orders in a timely

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fas
shion. Failu to do so may resul in the dism
ure
o
lt
missal of th action fo failure to prosecute
his
or

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pursuant to Federal Rule of Civil Pr
e
rocedure 41
1(b).

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IT IS SO ORDER
S
RED.
Da
ated: April 22, 2016
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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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ANDOAK\Data\Users\PJHALL\_p
psp\2016\2016_0
01098_Thao_v_C
California_Prison
n_Industry_Autho
ority_(PSP)\16-cv
v-01098-PJH\\CA
serv
ve.docx

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United States District Court
Northern District of California

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case

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dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil

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Procedure will, if granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for summary

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judgment. Generally, summary judgment must be granted when there is no genuine issue

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of material fact--that is, if there is no real dispute about any fact that would affect the

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

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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

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United States District Court
Northern District of California

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testimony), you cannot simply rely on what your complaint says. Instead, you must set

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out specific facts in declarations, depositions, answers to interrogatories, or authenticated

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documents, as provided in Rule 56(e), that contradict the facts shown in the defendant’s

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declarations and documents and show that there is a genuine issue of material fact for

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trial. If you do not submit your own evidence in opposition, summary judgment, if

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appropriate, may be entered against you. If summary judgment is granted, your case will

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be dismissed and there will be no trial.

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NOTICE -- WARNING (EXHAUSTION)
If defendants file a motion for summary judgment for failure to exhaust, they are
seeking to have your case dismissed. If the motion is granted it will end your case.
You have the right to present any evidence you may have which tends to show

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that you did exhaust your administrative remedies. Such evidence may be in the form of

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declarations (statements signed under penalty of perjury) or authenticated documents,

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that is, documents accompanied by a declaration showing where they came from and

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why they are authentic, or other sworn papers, such as answers to interrogatories or
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depositions. If defendants file a motion for summary judgment for failure to exhaust and it
is granted, your case will be dismissed and there will be no trial.
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DISTRICT C
COURT
UNITED STATES D

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NORTHER DISTRIC OF CAL
N
RN
CT
LIFORNIA

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NOU THAO,
,

Case No. 16-cv-010
098-PJH
Plaintiff,

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v.

CERTIFIC
CATE OF S
SERVICE

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United States District Court
Northern District of California

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CALIFORNIA PRISON INDUSTRY
C
A
Y
AUTHORITY et al.,
Y,
Defendants.
I, the undersigned hereby ce
u
d,
ertify that I am an emp
ployee in th Office of the Clerk,
he
f
S.
C
hern Distric of Californ
ct
nia.
U.S District Court, North

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That on April 22, 2016, I SER
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RVED a tru and corre copy(ies) of the att
ue
ect
tached, by
pla
acing said copy(ies) in a postage paid envelo addres
c
ope
ssed to the person(s) h
hereinafter
list
ted, by depositing said envelope in the U.S. Mail, or by placing sa copy(ies into an
d
y
aid
s)
inte
er-office de
elivery receptacle locat in the C
ted
Clerk's office.

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ou
I
No Thao ID: Prisoner Id J-27560
Sa Quentin State Priso
an
S
on
Sa Quentin, CA 94974
an

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Da
ated: April 22, 2016
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Susan Y. So
oong
C
Clerk, United States Dis
d
strict Court

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By
y:________
_________
_________
Nichole Peric Deputy C
c,
Clerk to the
e
Honorable P
PHYLLIS J. HAMILTON
N

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