Morris v. Sandoval et al

Filing 11

ORDER OF SERVICE;DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION Dispositive Motion due by 10/15/2013.. Signed by Judge Lucy H. Koh on 7/15/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 7/16/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CONDALEE MORRIS,

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Plaintiff,

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v.
SGT. D. SANDOVAL, et al.,

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Defendants.

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No. C 12-6132 LHK (PR)
ORDER OF SERVICE;
DIRECTING DEFENDANTS TO
FILE DISPOSITIVE MOTION
OR NOTICE REGARDING
SUCH MOTION

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Plaintiff, proceeding pro se, filed an amended civil rights complaint pursuant to 42
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U.S.C. § 1983. For the reasons stated below, the Court orders service upon the named
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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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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).
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Order of Service; Directing Defendants 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 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.

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Legal Claims
In the complaint, Plaintiff alleges that on January 7, 2012, Defendant Blair used

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excessive force upon him when Defendant Blair used three cans of pepper spray on Plaintiff, and

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Defendants Sandoval, Myers, Huff, and Espinosa exhibited deliberate indifference, in violation

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of the Eighth Amendment. Plaintiff also claims that Defendant LVN D. Nunley and Doe

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Defendants refused to provide medical treatment to Plaintiff after he was pepper sprayed.

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Plaintiff alleges that, as a result of the pepper spray and lack of treatment, he has now

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permanently lost vision in his right eye. Liberally construed, Plaintiff has stated cognizable

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claims for relief.

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Plaintiff also raises a claim that Defendant M. Rose violated his right to due process

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during his disciplinary hearing. Specifically, Plaintiff states that Defendant M. Rose prevented

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Plaintiff from presenting six witnesses on his behalf, and prevented Plaintiff’s statements and

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questions from being read into the record. Plaintiff alleges that the guilty finding at his

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disciplinary hearing resulted in a 150 day credit forfeiture, and requests damages, expungement

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of his disciplinary conviction, and restoration of his credits.

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However, in order to recover damages caused by actions whose unlawfulness would

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render a conviction or sentence invalid, Plaintiff must prove that the guilty finding from his

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disciplinary hearing has been reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal authorized to make such determination, or called into question by a

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federal court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-487

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(1994). If a plaintiff’s challenge to disciplinary hearing procedures that resulted in the

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deprivation of credits would necessarily imply the invalidity of the disciplinary judgment, Heck

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bars that claim. See Edwards v. Balisok, 520 U.S. 641, 645 (1997). Accordingly, Plaintiff’s due

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process claim is DISMISSED without prejudice. If Plaintiff wishes to challenge the decision
Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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that resulted in the credit forfeiture, he must do so in a petition for writ of habeas corpus, but not

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until he has first exhausted his state judicial remedies.

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Plaintiff also lists “Doe” Defendants. Although the use of “John Doe” to identify a

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defendant is not favored in the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

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Cir. 1980), situations may arise where the identity of alleged defendants cannot be known prior

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to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity

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through discovery to identify the unknown defendants, unless it is clear that discovery would not

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uncover their identities or that the complaint should be dismissed on other grounds. See id.

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Should Plaintiff discover the identities of the Doe Defendants, he may move to amend his

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complaint to include them in this action at a later date.

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CONCLUSION

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1.

Doe Defendants and Defendant Lt. M. Rose are DISMISSED without prejudice.

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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 amended

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complaint and all attachments thereto (docket no. 9), and a copy of this Order to Sgt. D.

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Sandoval, Correctional Officer W. Blair, Correctional Officer J. Huff, Correctional Officer

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Espinosa, Sgt. Myers, and LVN D. Nunley at SVSP.

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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 the California Attorney General’s Office. Additionally, the Clerk shall

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mail a copy of 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

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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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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7.

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:

7/15/13
LUCY H. KOH
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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