Riley v. Friederichs et al

Filing 4

ORDER OF SERVICE. Signed by Judge Donna M. Ryu on 7/23/18. (Certificate of Service Attached). (kcS, COURT STAFF) (Filed on 7/23/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALBERT RILEY,

Case No. 18-cv-02283-DMR (PR)

Plaintiff,
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v.

ORDER OF SERVICE

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T. FRIEDERICHS, et al.,
Defendants.

United States District Court
Northern District of California

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INTRODUCTION

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Plaintiff, a state prisoner currently incarcerated at the California Training Facility (“CTF”),

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has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging that Defendants were

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deliberately indifferent to his medical needs. Plaintiff seeks monetary damages as well as

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declaratory and injunctive relief.
Plaintiff has consented to magistrate judge jurisdiction. Dkt. 1 at 4. Therefore, this matter

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

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

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CTF in Monterey County, which is located in this judicial district. See 28 U.S.C. § 1391(b).

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In his complaint, Plaintiff names the following Defendants: California Department of

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Corrections and Rehabilitation (“CDCR”) Prison Doctors T. Friederichs, Z. Ahmed, and G.

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Kalisher.

DISCUSSION

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I.

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

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(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).

United States District Court
Northern District of California

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II.

DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS
Deliberate indifference to serious medical needs violates the Eighth Amendment’s

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proscription against cruel and unusual punishment. See 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 grounds,

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

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Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A determination of “deliberate indifference” involves

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an examination of two elements: the seriousness of the prisoner’s medical need and the nature of

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the defendant’s response to that need. See McGuckin, 974 F.2d at 1059. A “serious” medical

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need exists if the failure to treat a prisoner’s condition could result in further significant injury or

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the “unnecessary and wanton infliction of pain.” Id. (citing Estelle v. Gamble, 429 U.S. at 104).

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A prison official is deliberately indifferent if he or she knows that a prisoner faces a substantial

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risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer

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v. Brennan, 511 U.S. 825, 837 (1994).
Plaintiff alleges that “medical records as far back as 2015 substantiates that” he suffers

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from “(1) severe back spasms, (2) severe muscle/skeletal pain, (3) severe sciatica nerve pain;

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(4) twitching; (5) spinal/vertebral pain; and (6) severe knee pain.” Dkt. 1 at 8.1 Plaintiff claims

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Page number citations refer to those assigned by the Court’s electronic case management filing
system and not those assigned by Plaintiff.
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that from 2016 through 2017, his requests for appropriate tests, effective pain medication, and a

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“Lower Bunk/Lower Tier Chrono” were deliberately disregarded and denied by the named

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Defendants. Id. at 8-14. The denials contributed to and prolonged Plaintiff’s pain and suffering.

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Id. at 15-17.

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Liberally construed, the complaint states a cognizable Eighth Amendment claim against

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Defendants Friederichs, Ahmed, and Kalisher for deliberate indifference to Plaintiff’s serious

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medical needs.

CONCLUSION

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United States District Court
Northern District of California

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For the foregoing reasons, the court orders as follows:
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Plaintiff complaint states a cognizable claim of deliberate indifference to his

medical needs against Defendants Friederich, Ahmed, and Kalisher.
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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and all attachments thereto (dkt. 1), a Magistrate Judge jurisdiction consent form, and a copy of

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this Order to the following Defendants at CTF: CDCR Prison Doctors T. Friederichs, Z. Ahmed,

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and G. Kalisher.

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The Clerk shall also mail a copy of the complaint and a copy of this Order to the State

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Attorney General’s Office in San Francisco. Additionally, the Clerk shall mail a copy of this

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Order to Plaintiff.

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3.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure

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

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Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the court, on

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behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the

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

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

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

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to serve and file an answer before sixty (60) days from the date on which the request for waiver

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was sent. (This allows a longer time to respond than would be required if formal service of
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summons is necessary.) Defendants are asked to read the statement set forth at the foot of the

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waiver form that more completely describes the duties of the parties with regard to waiver of

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service of the summons. If service is waived after the date provided in the Notice but before

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Defendants have been personally served, the Answer shall be due sixty (60) days from the date on

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which the request for waiver was sent or twenty (20) days from the date the waiver form is filed,

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whichever is later. Defendants shall also respond to the Notice of Assignment of Prisoner

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Case to a United States Magistrate Judge for Trial by filing a consent/declination form on

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the date the Answer is due.
4.

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Civil Procedure. The following briefing schedule shall govern dispositive motions in this action:
a.

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United States District Court
Northern District of California

Defendants shall answer the complaint in accordance with the Federal Rules of

No later than sixty (60) days from the date their answer is due, Defendants

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

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supported by adequate factual documentation, must conform in all respects to Federal Rule of

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Civil Procedure 56, and must include as exhibits all records and incident reports stemming from

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the events at issue. A motion for summary judgment also must be accompanied by a Rand2 notice

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so that Plaintiff will have fair, timely and adequate notice of what is required of him in order to

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oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out

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in Rand must be served concurrently with motion for summary judgment). A motion to dismiss

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for failure to exhaust available administrative remedies must be accompanied by a similar notice.

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However, the court notes that under the new law of the circuit, in the rare event that a failure to

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exhaust is clear on the face of the complaint, Defendants may move for dismissal under Rule

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12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion.

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Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315

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F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative

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

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

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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
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the face of the complaint, Defendants must produce evidence proving failure to exhaust in a

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

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favorable to Plaintiff shows a failure to exhaust, Defendants are entitled to summary judgment

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

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

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1168.

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If Defendants are of the opinion that this case cannot be resolved by summary judgment,

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they shall so inform the court prior to the date the summary judgment motion is due. All papers

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filed with the court shall be promptly served on Plaintiff.

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b.

Plaintiff’s opposition to the dispositive motion shall be filed with the court

United States District Court
Northern District of California

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

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Defendants’ motion is filed.

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c.

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

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

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

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be granted when there is no genuine issue of material fact—that is, if there is no real dispute about

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any fact that would affect the result of your case, the party who asked for summary judgment is

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

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makes a motion for summary judgment that is properly supported by declarations (or other sworn

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

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

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as provided in Rule 56(e), that contradicts the facts shown in the defendant’s declarations and

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documents and show that there is a genuine issue of material fact for trial. If you do not submit

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your own evidence in opposition, summary judgment, if appropriate, may be entered against you.

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If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154

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F.3d at 962-63.

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Plaintiff also is advised that—in the rare event that Defendants argue that the failure to
exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available
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administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without

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

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

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

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others who have personal knowledge of relevant matters; (2) authenticated documents—

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

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authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements

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in your complaint insofar as they were made under penalty of perjury and they show that you have

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personal knowledge of the matters state therein. As mentioned above, in considering a motion to
dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment

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United States District Court
Northern District of California

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motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed

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issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168.

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(The notices above do not excuse Defendants’ obligation to serve similar notices again

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

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

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date Plaintiff’s opposition is filed.
e.

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Defendants 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.

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

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

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Plaintiff and any other necessary witnesses confined in prison.

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6.

All communications by Plaintiff with the court must be served on Defendants or

their counsel, once counsel has been designated, by mailing a true copy of the document to them.
7.

It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address and must comply with the court’s orders in a timely fashion.

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

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while an action is pending must promptly file a notice of change of address specifying the new
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add
dress. See L.R. 3-11(a). The court may dismiss without pre
L
m
ejudice a com
mplaint when (1) mail
n:

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directed to the pro se party by the cour has been re
p
y
rt
eturned to th court as n deliverable, and
he
not

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ails
ty
his
written comm
munication fr
from the pro
(2) the court fa to receive within sixt days of th return a w

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se party indicat
p
ting a curren address. See L.R. 3-1 1(b).
nt
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8.

Upon a show
wing of good cause, requ
d
uests for a re
easonable ex
xtension of t
time will be

gra
anted provided they are filed on or before the dea
f
adline they s
seek to exten
nd.
IT IS SO ORDERE
ED.
Da
ated: July 23, 2018
,
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__________
___________
__________
________
DO
ONNA M. R
RYU
Un
nited States M
Magistrate Ju
udge

United States District Court
Northern District of California

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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ALBERT RIL
A
LEY,

Case No. 1
18-cv-02283
3-DMR

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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T. FRIEDERI
ICHS, et al.,
s.
Defendants

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
strict Court, Northern Di
istrict of Cal
lifornia.
Dis

United States District Court
Northern District of California

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That on July 23, 20 I SERVE a true an correct co
n
018,
ED
nd
opy(ies) of th attached, by placing
he
said copy(ies) in a postage paid envelo addressed to the pers
i
ope
d
son(s) herein
nafter listed, by
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Alb
bert Riley ID P91107
D:
California Trai
ining Facility
y
O.
P.O Box 689
Sol
ledad, CA 93960-0689

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Da
ated: July 23, 2018
,

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usan Y. Soon
ng
Su
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable DO
ONNA M. R
RYU

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