Hearns v. Keo et al

Filing 8

ORDER OF PARTIAL DISMISSAL; ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION Dispositive Motion due by 7/3/2013.. Signed by Judge Lucy H. Koh on 4/3/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 4/4/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 CLARENCE LEONARD HEARNS, 12 Plaintiff, 13 14 v. C. KEO, et al., 15 Defendants. ) ) ) ) ) ) ) ) ) ) No. C 12-6407 LHK (PR) ORDER OF PARTIAL DISMISSAL; ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION 16 Plaintiff, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. 17 Plaintiff is granted leave to proceed in forma pauperis in a separate order. For the reasons stated 18 below, the Court partially dismisses the complaint, and orders service upon the named 19 Defendants. 20 DISCUSSION 21 A. Standard of Review 22 A federal court must conduct a preliminary screening in any case in which a prisoner 23 seeks redress from a governmental entity or officer or employee of a governmental entity. See 24 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss 25 any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or 26 seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 27 § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. 28 Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion G:\PRO-SE\SJ.LHK\CR.12\Hearns407srv.wpd 1 Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). 2 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 3 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 4 the alleged violation was committed by a person acting under the color of state law. See West v. 5 Atkins, 487 U.S. 42, 48 (1988). 6 B. 7 Legal Claims In the complaint, Plaintiff states that on November 26, 2010, Inmate Houk, a documented 8 and known violent inmate, was out of his cell at 7:00 p.m. Plaintiff alleges that Inmate Houk 9 was forbidden to be out of his cell after 4:00 p.m. According to Plaintiff, Defendants J. Harget 10 and J. Swangler instructed Defendant C. Keo to let Inmate Houk out. About thirty minutes later, 11 Plaintiff saw Inmate Houk using the phone at a time when Plaintiff’s cellmate was supposed to 12 be using the phone. Plaintiff asked Inmate Houk to hang up so that Plaintiff’s cellmate could use 13 the phone. Inmake Houk jumped up and attacked Plaintiff. Correctional staff eventually had to 14 use pepper spray to gain control of the situation. As a result, Inmate Houk was sent to 15 administrative segregation and given a rules violation report for battery. Defendants J. 16 Swangler, John Doe, and J. Stevenson also charged Plaintiff with fighting with Inmate Houk, 17 and Plaintiff was found guilty. 18 Liberally construed, Plaintiff has stated a cognizable claim that Defendants J. Harget, J. 19 Swangler, and C. Keo were deliberately indifferent to his safety needs and failed to protect him, 20 in violation of the Eighth Amendment. 21 To the extent Plaintiff is attempting to argue that Defendants J. Swangler, John Doe, and 22 J. Stevenson filed false charges against him, he fails to state a claim. A prisoner has no 23 constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which 24 may result in the deprivation of a protected liberty interest. Sprouse v. Babcock, 870 F.2d 450, 25 452 (8th Cir. 1989). As long as a prisoner is afforded procedural due process in the disciplinary 26 hearing, allegations of a fabricated charge fail to state a claim under § 1983. Hanrahan v. Lane, 27 747 F.2d 1137, 1140-41 (7th Cir. 1984). Plaintiff does not allege that he was not afforded due 28 Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion 2 G:\PRO-SE\SJ.LHK\CR.12\Hearns407srv.wpd 1 process. Nor does Plaintiff allege that the evidence was insufficient to sustain a guilty finding. 2 See Superintendent v. Hill, 472 U.S. 445, 454 (1985). Thus, this claim is DISMISSED. 3 Defendant J. Stevenson is also DISMISSED. If Plaintiff believes that he can, in good faith, 4 allege a cognizable claim, he may amend his complaint within thirty days to include such a 5 claim. 6 7 CONCLUSION 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 8 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 9 and all attachments thereto (docket no. 1), and a copy of this Order to Correctional Officer C. 10 Keo, Correctional Officer J. Harget, and Correctional Officer J. Swangler at SVSP. 11 Defendant J. Stevenson is DISMISSED. 12 The Clerk of the Court shall also mail a courtesy copy of the complaint and a copy of this 13 Order to the California Attorney General’s Office. Additionally, the Clerk shall mail a copy of 14 this Order to Plaintiff. 15 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 16 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 17 Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on 18 behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear 19 the cost of such service unless good cause be shown for their failure to sign and return the waiver 20 form. If service is waived, this action will proceed as if Defendants had been served on the date 21 that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required 22 to serve and file an answer before sixty (60) days from the date on which the request for waiver 23 was sent. (This allows a longer time to respond than would be required if formal service of 24 summons is necessary.) Defendants are asked to read the statement set forth at the bottom of the 25 waiver form that more completely describes the duties of the parties with regard to waiver of 26 service of the summons. If service is waived after the date provided in the Notice but before 27 Defendants have been personally served, the Answer shall be due sixty (60) days from the date 28 Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion 3 G:\PRO-SE\SJ.LHK\CR.12\Hearns407srv.wpd 1 on which the request for waiver was sent or twenty (20) days from the date the waiver form is 2 filed, whichever is later. 3 3. No later than ninety (90) days from the date of this Order, Defendants shall file a 4 motion for summary judgment or other dispositive motion with respect to the cognizable claims 5 in the complaint. 6 a. If Defendants elect to file a motion to dismiss on the grounds that Plaintiff 7 failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), 8 Defendants shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315 9 F.3d 1108, 1119-20 (9th Cir. 2003). 10 b. Any motion for summary judgment shall be supported by adequate factual 11 documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil 12 Procedure. Defendants are advised that summary judgment cannot be granted, nor 13 qualified immunity found, if material facts are in dispute. If Defendants are of the opinion 14 that this case cannot be resolved by summary judgment, they shall so inform the Court 15 prior to the date the summary judgment motion is due. 16 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court and 17 served on Defendants no later than twenty-eight (28) days from the date Defendants’ motion is 18 filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and 19 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must 20 come forward with evidence showing triable issues of material fact on every essential element of 21 his claim). 22 23 24 25 26 27 5. Defendants shall file a reply brief no later than fourteen (14) days after Plaintiff’s opposition is filed. 6. 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. 7. All communications by the Plaintiff with the Court must be served on Defendants or Defendants’ counsel, by mailing a true copy of the document to Defendants or Defendants’ 28 Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion 4 G:\PRO-SE\SJ.LHK\CR.12\Hearns407srv.wpd 1 2 3 4 counsel. 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. 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 5 and all parties informed of any change of address and must comply with the Court’s orders in a 6 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 7 pursuant to Federal Rule of Civil Procedure 41(b). 8 9 10 IT IS SO ORDERED. DATED: 4/3/13 LUCY H. KOH United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting Application to Proceed In Forma Pauperis; Order of Service 5 G:\PRO-SE\SJ.LHK\CR.12\Hearns407srv.wpd

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