Merino v. Medical Staff at Redwood City (Msguire Jail)

Filing 12

ORDER of Partial Dismissal; ORDER OF SERVICE; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion. Signed by Judge Ronald M. Whyte on 10/11/12. (jgS, COURT STAFF) (Filed on 10/12/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FRANCISCO MERINO,
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Plaintiff,
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v.
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MEDICAL STAFF AT REDWOOD CITY, )
et al.,
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Defendants.
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No. C 11-6310 RMW (PR)
ORDER OF PARTIAL
DISMISSAL; ORDER OF
SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION

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Plaintiff, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983.
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Plaintiff has been granted leave to proceed in forma pauperis in a separate written order. For the
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reasons below, the court orders service upon defendants.
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DISCUSSION
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A.

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. 28
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U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any
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claims which 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. 28 U.S.C.
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§ 1915A(b)(1),(2). Pro se pleadings must, however, be liberally construed. Balistreri v. Pacifica
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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

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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 violated,

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and (2) that the alleged deprivation was committed by a person acting under the color of state

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law. West v. Atkins, 487 U.S. 42, 48 (1988). In determining whether a complaint states a claim,

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the court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule

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8(a), a complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does

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not require ‘detailed factual allegations,’ but it demands more than an unadorned,

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the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).

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B.

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Plaintiff’s Claims
In plaintiff’s original complaint, the court warned him that in order to state a claim for

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relief under section 1983, plaintiff must link each defendant with some affirmative act or

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omission that demonstrates a violation of plaintiff's federal rights. Id. at 1948. Naming “medical

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staff” as defendants is insufficient to identify the individuals involved. In addition to providing

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factual information to show that constitutional violations occurred (as discussed above), plaintiff

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must allege in his amended complaint who caused those constitutional violations. He should not

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refer to them as a group (e.g., “the defendants” or “the medical staff”); rather, he should identify

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each involved person by name and explain what each defendant did or failed to do that caused a

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violation of his constitutional rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988)

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(liability may be imposed on individual defendant under § 1983 only if plaintiff can show that

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defendant proximately caused deprivation of federally protected right).

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However, as to plaintiff’s claim of deliberate indifference, he again merely names the

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“medical staff”, and has not named any individual defendant. He has named “Jane Does” as

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nurses, but the use of “John Doe” to identify a defendant is not favored in the Ninth Circuit. See

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Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). If, through discovery, plaintiff

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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identifies the unknown defendants, plaintiff may move to amend his complaint, or file a new

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complaint. At this time, however, plaintiff has not properly linked an individual defendant with

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a claim of a constitutional violation. Thus, plaintiff’s claim of deliberate indifference to his

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serious medical needs is DISMISSED without prejudice.

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Plaintiff also alleges that he engaged in a confrontation with defendants Deputy Monrose,

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Deputy Stormie, and Lieutenant Cerda, wherein they used excessive force upon him and broke

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several of his bones, and caused nerve damage to his arms and legs. Liberally construed,

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plaintiff has stated a cognizable claim of excessive force.

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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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1.

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 amended

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complaint and all attachments thereto (docket no. 11), and a copy of this order to Deputy

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Monrose, Deputy Stormie, and Lieutenant Cerda, and at the San Mateo County Maguire

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Jail.

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The clerk of the court shall also mail a courtesy copy of the amended complaint and a

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copy of this order to Ceide Zapparoni, Office of County Counsel, 400 County Center, Redwood

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City, CA 94063. Additionally, the clerk shall mail a copy of this order to plaintiff.

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2.

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

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the cost of such service unless good cause is 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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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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summons is necessary.) Defendants are 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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defendants have been personally served, the Answer shall be due sixty (60) days from the date

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

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filed, whichever is later.

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3.

No later than ninety (90) days from the date of this order, defendants 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 defendants elect 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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defendants 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. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If defendants are of the opinion

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that this case cannot be resolved by summary judgment, they shall so inform the court

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prior to the date the summary judgment motion is due.

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4.

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

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served on defendants no later than twenty-eight (28) days from the date defendants’ 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) (holding 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).

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5.

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

opposition is filed.

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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6.

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 defendants

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

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counsel.

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8.

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

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 of Service; Directing Defendants to File Disposition Motion
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G:\PRO-SE\SJ.Rmw\CR.11\Merino310srv.wpd

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

FRANCISCO MERINO,

Case Number: CV11-06310 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
MEDICAL STAFF AT REDWOOD CITY 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 October 12, 2012, 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.

Francisco Merino AI4722
Salinas Valley State Prison
SVPP-DMH, D6-123
PO Box 1050
Soledad, CA 93960
Dated: October 12, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk