Hardaway v. Franco

Filing 12

ORDER OF SERVICE; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion. Habeas Answer or Dispositive Motion due by 9/24/2013. Signed by Judge Ronald M. Whyte on 7/25/13. (jg, COURT STAFF) (Filed on 7/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SONNY RAY HARDAWAY,

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Plaintiff,

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v.
Y. FRANCO,

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Defendant.

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No. C 12-5885 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 an amended federal civil rights
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complaint pursuant to 42 U.S.C. § 1983. For the reasons that follow, the court orders service
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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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Order of Service; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion
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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 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.

Plaintiff’s Claims

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Plaintiff sues prison official, Y. Franco. Plaintiff alleges that he was transported in waist

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chains to the prison hospital for x-rays on his “torn shoulder.” After the appointment, defendant

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Franco ordered plaintiff to place his hands behind his back so that Franco could handcuff him.

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Plaintiff told Franco that he had a shoulder injury and could not be in handcuffs. Franco

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threatened plaintiff, and handcuffed plaintiff anyway. Plaintiff alleges that the handcuffing

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caused his torn shoulder serious pain. Liberally construed, plaintiff states a cognizable claim of

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deliberate indifference to serious medical needs.

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CONCLUSION

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For the foregoing reasons, the court orders:

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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 Correctional

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Officer Y. Franco at SVSP.

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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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2.

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
Order of Service; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion
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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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3.

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.
4.

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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).
Order of Service; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion
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5.

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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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

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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 Defendant to File Dispositive Motion or Notice Regarding Such Motion
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

SONNY RAY HARDAWAY,

Case Number: CV12-05885 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
Y FRANCO 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 July 26, 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.

Sonny Ray Hardaway P-45579
Salinas Valley State Prison
B2-217
PO Box 1050
Soledad, CA 93960
Dated: July 26, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk