Treglia v. Kerman et al

Filing 11

ORDER GRANTING MOTION FOR RECONSIDERATION; AMENDED ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION by Judge Lucy H. Koh granting 10 Motion for reconsideration (Attachments: # 1 cert of service) (mpb, COURT STAFF) (Filed on 11/8/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DANIEL TREGLIA,

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Plaintiff,
v.

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SCOTT KERNAN, et al.,
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Defendants.
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No. C 12-2522 LHK (PR)
ORDER GRANTING MOTION
FOR RECONSIDERATION;
AMENDED ORDER OF
SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION

Plaintiff, a California state prisoner proceeding pro se, filed an amended civil rights

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action under 42 U.S.C. § 1983, against prison officials. On September 7, 2012, the Court found

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that Plaintiff stated cognizable claims of retaliation against Defendants Lewis and Kernan and

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deliberate indifference against Defendant Nurse Smith, and exercised its supplemental

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jurisdiction over Plaintiff’s state law claims. The Court dismissed Plaintiff’s retaliation and due

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process claims against Defendants Bumby, James, and Anderson. Plaintiff had alleged that

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Defendants Bumby, James, and Anderson retaliated against him, and violated Plaintiff’s due

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process rights by creating a false disciplinary report, and finding him guilty at a disciplinary

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hearing. Because Plaintiff was requesting money damages for allegedly unlawful disciplinary

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sanctions that included the loss of time credits, the Court dismissed this claim without prejudice

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to Plaintiff’s re-filing the claim once it had been dismissed, invalidated or expunged on appeal or

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on collateral review. See Edwards v. Balisok, 520 U.S. 641, 645 (1997).

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Order Granting Motion for Reconsideration; Amended Order of Service; Directing Defendants to File Dispositive
Motion or Notice Regarding Such Motion
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On September 24, 2012, Plaintiff filed a motion for a supplemental order, which the

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Court construes as a motion for leave to file a motion for reconsideration. So construed, the

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motion is GRANTED. In his motion, Plaintiff explains that his challenged loss of credits were

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in fact restored, and the disciplinary write-up was expunged from his file, and thus, his claim is

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properly brought before this Court. The Court agrees, and issues this amended order of service.

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DISCUSSION

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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.

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Legal Claim
Plaintiff is an inmate, currently housed in the Secured Housing Unit (“SHU”) at Pelican

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Bay State Prison (“PBSP”). On July 1, 2011, several inmates at PBSP began staging a hunger

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strike to protest the conditions of PBSP SHU. The following day, a memorandum was

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distributed to the inmates, describing the effects that starvation has on a person, and stating that

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refusing food was an inmate’s right and choice. On September 26, 2011, Plaintiff decided to join

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the hunger strike in an effort to peacefully protest his dissatisfaction with the conditions at PBSP,

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and exercise his right to free speech. The following day, Defendant Lewis ordered officers to

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distribute a memo, authored by Defendant Scott Kernan, that stated that the California

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Department of Corrections and Rehabilitation would not tolerate organized inmate disturbances

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such as hunger strikes or work stoppages, and that inmates who participated in such activities

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would receive disciplinary action. Plaintiff alleges that Defendants’ threat of disciplinary action

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was an adverse action taken because of his right to free speech, i.e., a protected conduct.

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Order Granting Motion for Reconsideration; Amended Order of Service; Directing Defendants to File Dispositive
Motion or Notice Regarding Such Motion
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Liberally construed, Plaintiff states a cognizable claim of retaliation against Defendants Lewis

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and Kernan.

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Plaintiff also asserts a claim of deliberate indifference to his serious medical needs

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against Defendant Nurse Smith. On September 30, 2011, after Plaintiff had been participating in

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the hunger strike for five days, his hunger was getting worse. Plaintiff informed one officer and

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two inmates that he was dry heaving, throwing up “yellow stuff,” and that his pain and suffering

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were increasing. Defendant Nurse Smith was informed at least by these two inmates of

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Plaintiff’s condition, and Plaintiff himself begged for help, but Defendant Nurse Smith merely

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replied, “he knows the outcome of not eating; it’s not my problem,” and “So damn what deal

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with the shit, you put in a sick call slip, and eat your food, your not getting nothing tonight.”

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[Sic.] Defendant Nurse Smith never came to check on Plaintiff. Plaintiff submitted a sick call

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slip that night, but it was ignored. Plaintiff claims that he had a serious medical need, and,

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liberally construing Plaintiff’s complaint, Defendant Nurse Smith knew that Plaintiff faced a

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substantial risk of harm but disregarded that risk. Liberally construed, Plaintiff states a

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cognizable claim of deliberate indifference. The Court exercises supplemental jurisdiction over

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the related state law claim.

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Finally, Plaintiff claims that Defendants Bumby, James, and Anderson retaliated against

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him, and violated Plaintiff’s due process rights by creating a false disciplinary report, and finding

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him guilty at a disciplinary hearing. Plaintiff asserts that the guilty finding, based on the false

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report, resulted in 90 days loss of credits. Plaintiff has since had his credits restored and

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disciplinary sanctions expunged. Liberally construed, Plaintiff states cognizable claims of

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retaliation and due process against Defendants Bumby, James, and Anderson.

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CONCLUSION
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. 3), and a copy of this Order to Correctional

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Officer W. Bumby, Correctional Lieutenant D. James, and Correctional Lieutenant J.C.

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Order Granting Motion for Reconsideration; Amended Order of Service; Directing Defendants to File Dispositive
Motion or Notice Regarding Such Motion
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Anderson at Pelican Bay State Prison. Defendants Kernan, Lewis, and Smith were mailed

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their Notices of Lawsuit and Requests for Waiver on September 17, 2012. The Clerk of the

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Court shall also mail a courtesy copy of this Order to the California Attorney General’s Office.

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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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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 claims

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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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Order Granting Motion for Reconsideration; Amended Order of Service; Directing Defendants to File Dispositive
Motion or Notice Regarding Such Motion
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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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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’ counsel, by mailing a true copy of the document to Defendants’ 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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This order terminates docket number 10.

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IT IS SO ORDERED.

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DATED:

11/7/12
LUCY H. KOH
United States District Judge

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Order Granting Motion for Reconsideration; Amended Order of Service; Directing Defendants to File Dispositive
Motion or Notice Regarding Such Motion
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