Hornbuckle v. Washington-Adduci

Filing 22

ORDER OF SERVICE (CERTIFICATE OF SERVICE ATTACHED). Signed by Judge Phyllis J. Hamilton on 1/9/17. (napS, COURT STAFF) (Filed on 1/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TYNISHA MARIE HORNBUCKLE,
Plaintiff,

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ORDER OF SERVICE

v.
WARDEN MATEVOUSIAN, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 16-cv-05527-PJH

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Plaintiff, a federal prisoner, has filed a pro se civil rights complaint pursuant to

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Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The second amended

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complaint was dismissed with leave to amend and plaintiff has filed a third amended

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complaint.
DISCUSSION

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STANDARD OF REVIEW

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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

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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United States District Court
Northern District of California

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

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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 private cause of action under Bivens, and its progeny, a plaintiff must

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allege: (1) that a right secured by the Constitution of the United States was violated, and

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(2) that the alleged deprivation was committed by a federal actor. Van Strum v. Lawn,

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940 F.2d 406, 409 (9th Cir. 1991) (§ 1983 and Bivens actions are identical save for the

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replacement of a state actor under § 1983 by a federal actor under Bivens).

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LEGAL CLAIMS

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Plaintiff states that she received inadequate medical care at FCI-Dublin.

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Deliberate indifference to serious medical needs violates the Eighth Amendment’s

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proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104

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(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en

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banc). A determination of “deliberate indifference” involves an examination of two

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elements: the seriousness of the prisoner's medical need and the nature of the

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defendant's response to that need. Id. at 1059.

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A “serious” medical need exists if the failure to treat a prisoner’s condition could

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result in further significant injury or the “unnecessary and wanton infliction of pain.” Id.

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The existence of an injury that a reasonable doctor or patient would find important and

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worthy of comment or treatment; the presence of a medical condition that significantly

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affects an individual's daily activities; or the existence of chronic and substantial pain are

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examples of indications that a prisoner has a “serious” need for medical treatment. Id. at

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1059-60.

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A prison official is deliberately indifferent if he or she knows that a prisoner faces a
substantial risk of serious harm and disregards that risk by failing to take reasonable
steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must

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United States District Court
Northern District of California

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not only “be aware of facts from which the inference could be drawn that a substantial

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risk of serious harm exists,” but he “must also draw the inference.” Id. If a prison official

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should have been aware of the risk, but was not, then the official has not violated the

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Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290

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F.3d 1175, 1188 (9th Cir. 2002). “A difference of opinion between a prisoner-patient and

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prison medical authorities regarding treatment does not give rise to a § 1983 claim.”

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Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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Plaintiff states that various doctors and officials denied proper medical care or

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failed to adequately treat her and a correctional officer denied medical care and never

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called for assistance when she vomited and collapsed. Liberally construed, plaintiff’s

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allegations against Mr. Litsenberger, Officer Raski, Physician’s Assistant Cespedes,

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Physician’s Assistant Johnson, Warden Matevousian, and Dr. Snell are sufficient to

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proceed. Plaintiff identifies several other individuals and describes their actions;

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however, her bare allegations with little information fail to set forth a constitutional

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violation against these parties.

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CONCLUSION
1. All defendants are dismissed with prejudice except Mr. Litsenberger, Officer
Raski, Physician’s Assistant Cespedes, Physician’s Assistant Johnson, Warden
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Matevousian, and Dr. Snell.
2. The clerk shall issue a summons and the United States Marshal shall serve,

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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 at FCI-Dublin: Mr. Litsenberger, Officer Raski,

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Physician’s Assistant Cespedes, Warden Matevousian , and Dr. Snell.
3. In order to expedite the resolution of this case, the court orders as follows:

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

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United States District Court
Northern District of California

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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),
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pla
aintiff should take note of the atta
d
e
ached page headed "N
NOTICE -- W
WARNING

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(EX
XHAUSTIO
ON)," which is provided to him as required by Wyatt v. T
d
y
Terhune, 315 F.3d

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1108, 1120 n. 4 (9th Cir. 2003).
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d. If defendant wishe to file a re
es
eply brief, h shall do so no later than
he
r

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fifte days after the opp
een
a
position is served upon her.
s
n
e. The mo
otion shall be deemed submitted a of the da the repl brief is
b
as
ate
ly

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United States District Court
Northern District of California

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due. No hear
ring will be held on the motion un
e
nless the co so orde at a late date.
ourt
ers
er
4. All communica
c
ations by pla
aintiff with t court m
the
must be serv on defe
ved
endant, or
fendant’s counsel onc counsel has been d
c
ce
h
designated, by mailing a true copy of the
y
def
document to defendants or defenda
d
s
ants' couns
sel.
5. Disc
covery may be taken in accordan with the Federal R
y
i
nce
e
Rules of Civ
vil

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Pro
ocedure. No further court order under Fede Rule of Civil Proce
N
u
eral
f
edure 30(a)
)(2) is

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req
quired before the parties may con
nduct disco
overy.

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6. It is plaintiff's responsibilit to prosec
s
r
ty
cute this ca
ase. Plaintiff must kee the court
ep
t

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info
ormed of any change of address by filing a s
separate pa
aper with th clerk hea
he
aded

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“No
otice of Cha
ange of Address.” He also must comply wit the court orders in a timely
e
th
t's
n

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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: January 9, 2017

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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ndoak.cand.circ9
9.dcn\data\users\PJHALL\_psp\2
2016\2016_05527
7_Hornbuckle_v_
v_Washington-Ad
dduci_(PSP)\16-c
cv-05527-PJHserv
ve.docx

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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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UNITED STATES D
DISTRICT C
COURT

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NORTHER DISTRIC OF CAL
N
RN
CT
LIFORNIA

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TY
YNISHA MA
ARIE HOR
RNBUCKLE,

Case No. 16-cv-055
527-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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WARDEN MATEVOUS
W
M
SIAN, et al.,
Defendants.

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United States District Court
Northern District of California

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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
That on January 9, 2017, I SERVED a t
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S
true and co
orrect copy(
(ies) of the attached,
by placing said copy(ies) in a posta paid en velope add
age
dressed to t person(
the
(s)
hereinafter lis
sted, by dep
positing said envelope in the U.S. Mail, or by placing sa
d
e
y
aid
copy(ies) into an inter-of
o
ffice deliver receptaclle located in the Clerk office.
ry
k's

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e
kle
83-097
Tynisha Marie Hornbuck ID: 6638
FC Aliceville
CI
11070 Highwa 14
ay
P O Box 4000
0
Aliceville, AL 35442

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ated: January 9, 2017
Da

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Susan Y. So
oong
Clerk, United States Dis
d
strict Court
C

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

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