Pina v. Lewis et al

Filing 48

ORDER by Judge Ronald M. Whyte Denying 44 Request for Transfer; Granting 45 Motion for Reconsideration; RE-OPENING CASE; ORDER OF SERVICE. (jg, COURT STAFF) (Filed on 5/13/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PABLO P. PINA,

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Plaintiff,
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v.
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CORRECTIONAL OFFICER E. BONITI, )
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Defendant.
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No. C 10-3784 RMW (PR)
ORDER GRANTING MOTION TO
RECONSIDER; DENYING
REQUEST FOR TRANSFER; REOPENING CASE; ORDER OF
SERVICE
(Docket Nos. 44, 45)

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On August 25, 2010, plaintiff, a state prisoner proceeding pro se, filed a civil rights

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complaint pursuant to 42 U.S.C. § 1983. On two occasions, the court directed plaintiff to file an

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amended complaint. The court did not receive any communication from plaintiff, and dismissed

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this case twice. After each dismissal, plaintiff filed a motion for reconsideration, stating that he

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never received the orders directing him to file an amended complaint, and supporting his

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argument with evidence. The court granted each motion and re-opened the case. On October 24,

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2012, plaintiff filed a first amended complaint. The court dismissed the amended complaint with

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leave to amend, and directed plaintiff to file a second amended complaint within thirty days.

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Two months later, having received nothing from plaintiff, the court again dismissed this action.

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On April 17, 2013, plaintiff filed a motion to reconsider, arguing that he indeed sent a second

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amended complaint in for filing. Having reviewed plaintiff’s motion and attached proposed

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second amended complaint, the court GRANTS plaintiff’s motion to reconsider, and directs the
Order Granting Motion to Reconsider; Denying Request for Transfer; Re-Opening Case; Order of Service
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clerk to RE-OPEN this action and FILE plaintiff’s second amended complaint. Plaintiff’s

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motion requesting that the case be transferred is DENIED. For the reasons below, the court

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orders service upon defendant.

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DISCUSSION
A.

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

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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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

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

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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.

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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.

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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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B.

Legal Claim

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Plaintiff alleges that, around February 28, 2010, defendant Correctional Officer E. Boniti

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opened plaintiff’s cell door when another inmate – presumably Inmate Sosa – was out on the tier.

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It appears that an altercation occurred between plaintiff and Sosa. Plaintiff claims that defendant

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Boniti then shot plaintiff for no reason after the altercation concluded. Liberally construed,

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plaintiff has stated a cognizable claim of excessive force. The court exercises its supplemental

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jurisdiction over plaintiff’s alleged state law claims as well.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Plaintiff’s motion to reconsider is GRANTED. The clerk shall RE-OPEN this

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action and FILE plaintiff’s second amended complaint. Plaintiff’s motion to transfer is

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DENIED.

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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 second

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amended complaint and all attachments thereto (docket no. 45), and a copy of this Order to

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Correctional Officer E. Boniti at Pelican Bay State Prison. The Clerk of the Court shall also
Order Granting Motion to Reconsider; Denying Request for Transfer; Re-Opening Case; Order of Service
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mail a courtesy copy of the complaint and a copy of this Order to the California Attorney

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General’s Office. Additionally, the Clerk shall mail 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

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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 defendant, 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, fails to do so, he will be required to bear the

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

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

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that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendant 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.) Defendant is asked to read the statement set forth at the bottom 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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defendant has 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.

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6.

No later than ninety (90) days from the date of this order, defendant shall file a

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motion for summary judgment or other dispositive motion with respect to the cognizable claim

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in the complaint.

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a.

If defendant elects to file a motion to dismiss on the grounds that plaintiff

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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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defendant shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315

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F.3d 1108, 1119-20 (9th Cir. 2003).

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b.

Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendant is advised that summary judgment cannot be granted, nor qualified

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immunity found, if material facts are in dispute. If defendant is of the opinion that this
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case cannot be resolved by summary judgment, he shall so inform the court prior to the

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date the summary judgment motion is due.

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7.

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

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served on defendant no later than twenty-eight (28) days from the date defendant’s motion is

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filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex

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Corp. v. Catrett, 477 U.S. 317 (1986).

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8.

Defendant shall file a reply brief no later than fourteen (14) days after plaintiff’s

opposition is filed.
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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.
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All communications by the plaintiff with the court must be served on defendant or

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defendant’s counsel, by mailing a true copy of the document to defendant or defendant’s

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counsel.

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

No further court order is required before the parties may conduct discovery.
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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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and all parties informed of any change of address and must comply with the court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order Granting Motion to Reconsider; Denying Request for Transfer; Re-Opening Case; Order of Service
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

PABLO PINA,

Case Number: CV10-03784 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
LEWIS et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on May 13, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

Pablo P. Pina D-28079
Pelican Bay State Prison
P. O. Box 7500
D-2; #122 SHU
Crescent City, CA 95531
Dated: May 13, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk