Levingston v. Hedgpeth et al

Filing 6

ORDER OF PARTIAL DISMISSAL; ORDER OF SERVICE; ORDER DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION. Signed by Judge Lucy H. Koh on 11/7/12. (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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BYRON LEVINGSTON,

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Plaintiff,

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v.
CAPT. A. HEDGPETH, et al.,

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Defendants.

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No. C 12-4284 LHK (PR)
ORDER OF PARTIAL
DISMISSAL; ORDER OF
SERVICE; ORDER
DIRECTING DEFENDANTS
TO FILE DISPOSITIVE
MOTION OR NOTICE
REGARDING SUCH MOTION

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint against prison
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officials, pursuant to 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma
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pauperis in a separate order. For the reasons stated below, the Court dismisses one Defendant
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and orders service upon the remaining Defendants.
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DISCUSSION
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A.

Standard of Review

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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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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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Pacifica 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 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. See West v.

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Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims

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Plaintiff alleges that on August 9, 2011, Defendants attempted to reintegrate “Northern

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Hispanic” inmates with the black inmate population although several attempts at reintegration

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had failed. Plaintiff claims that Defendants were aware that the Northern Hispanic inmates

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possessed weapons at the time of reintegration. As a result of the attempted reintegration,

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Plaintiff was stabbed eight times. Liberally construed, Plaintiff has stated a cognizable claim of

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deliberate indifference to his safety.

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Plaintiff names as a Defendant the California Department of Corrections and

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Rehabilitation (“CDCR”). However, the Eleventh Amendment bars from the federal courts suits

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against a state by its own citizens, citizens of another state or citizens or subjects of any foreign

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state. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985). This Eleventh

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Amendment immunity also extends to suits against a state agency, see, e.g., Brown v. Cal. Dep’t

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of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (CDCR and California Board of Prison Terms are

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entitled to 11th Amendment immunity). Thus, CDCR is DISMISSED from this action.

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CONCLUSION

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

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1.

Defendant CDCR is DISMISSED.

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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 complaint

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and all attachments thereto (docket no. 1), and a copy of this Order to Captain A. Hedgpeth, B-

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Facility Captain D. Asuncion, B-Facility Sergeant R. Parin, B-Facility Program Sergeant

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M. Thomas, B-Facility Yard Sergeant L. Locke, and B-Facility Unit 5 Control Tower B.

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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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G:\PRO-SE\SJ.LHK\CR.12\Levingston284srv.wpd

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Sanchez at Salinas Valley State Prison.
The Clerk of the Court shall also mail a courtesy copy of the complaint and a copy of this

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Order to the California Attorney General’s Office. Additionally, the Clerk shall mail a copy of

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this 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

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the 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 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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4.

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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Order of Partial Dismissal; 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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5.

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

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Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must

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come forward with evidence showing triable issues of material fact on every essential element of

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his claim).

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6.

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

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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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9.

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

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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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