Williams -v- Mack

Filing 7

ORDER OF SERVICE; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion. Motions terminated: 1 MOTION for Preliminary Injunction filed by James Edward Williams. Dispositive Motion due by 6/25/2013. Signed by Judge Ronald M. Whyte on 3/27/13. (jg, COURT STAFF) (Filed on 3/27/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAMES EDWARD WILLIAMS,

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Plaintiff,

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v.
DR. R. MACK,

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Defendant.

No. C 12-5687 RMW(PR)
ORDER OF SERVICE;
DIRECTING DEFENDANT 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 pursuant to 42
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U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis in a separate order. For
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the reasons stated below, the court orders service upon defendant.
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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 id. § 1915A(b)(1),
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(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police
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Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
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Order of Service; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion
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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 deprivation 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).

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B.

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Plaintiff’s Claims
Plaintiff alleges that Dr. Mack, plaintiff’s primary care physician, was deliberately

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indifferent to his serious medical needs by failing to prescribe effective pain medication. Very

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liberally construed, plaintiff has alleged a cognizable claim that Dr. Mack violated his Eighth

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Amendment right against deliberate indifference.

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C.

Motion for Preliminary Injunction

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Plaintiff requests the court to issue a preliminary injunction to stop Dr. Mack from

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prescribing methadone. Federal Rule of Civil Procedure 65 sets forth the procedure for issuance

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of a preliminary injunction. Prior to granting a preliminary injunction, however, notice to the

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adverse party is required. See Fed. R. Civ. P. 65(a)(1). Because Dr. Mack has not yet been

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served, a motion for preliminary injunction is denied. See Zepeda v. INS, 753 F.2d 719, 727

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(9th Cir. 1983).

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CONCLUSION

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

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1.

Plaintiff’s motion for a preliminary injunction is DENIED. (Docket No. 1.)

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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. 6), and a copy of this order to Dr. R. Mack at Salinas

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Valley State Prison. The clerk shall also serve a copy of this order on plaintiff and mail a

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courtesy copy of the complaint to the California Attorney General’s Office.

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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
Order of Service; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion
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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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4.

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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5.

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) (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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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 of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JAMES EDWARD WILLIAM et al,

Case Number: CV12-05687 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
DR. MACK, ET AL. 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 March 27, 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.

James Edward Williams V-54214
Kern Valley State Prison
D-1-222
P.O. Box 5104
Delano, CA 93216
Dated: March 27, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk