Reyes v. Meyer
Filing
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ORDER Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion by Judge Ronald M. Whyte. (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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ABEL REYES,
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Plaintiff,
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v.
A. MEYER,
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Defendant.
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No. C 13-0980 RMW(PR)
ORDER DIRECTING
DEFENDANT TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION
(Docket No. 3)
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Plaintiff, a state prisoner proceeding pro se, filed a civil complaint in the Superior Court
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of Monterey County. On March 4, 2013, defendant Meyer filed a notice of removal. For the
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reasons stated below, the court directs defendant to file a dispositive motion or notice regarding
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such motion.
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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 Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion
G:\PRO-SE\RMW\CR.13\Reyes980srv.wpd
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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.
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Plaintiff’s Claims
Plaintiff alleges that on December 25, 2009, defendant Correctional Officer A. Myer and
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his partner used excessive force upon plaintiff when removing plaintiff from his cell in
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mechanical restraints, injuring plaintiff’s shoulder. Plaintiff claims Myer again assaulted him
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when Myer slammed plaintiff’s head twice against the inside of the back of the holding cage.
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Liberally construed, plaintiff has stated a cognizable claim of excessive force against defendant
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Myer.
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The court also exercises its supplemental jurisdiction over plaintiff’s state law claims.
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CONCLUSION
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For the foregoing reasons, the court hereby orders as follows:
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1.
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.
Order Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion
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2.
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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3.
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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6.
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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This order terminates docket number 3.
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IT IS SO ORDERED.
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DATED:
RONALD M. WHYTE
United States District Judge
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Order Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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G:\PRO-SE\RMW\CR.13\Reyes980srv.wpd
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
ABEL REYES,
Case Number: CV13-00980 RMW
Plaintiff,
CERTIFICATE OF SERVICE
v.
A MEYER et al,
Defendant.
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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.
Abel Reyes P-55763
Kern Valley State Prison
3000 West Cecil Avenue
PO Box 5103
Delano, CA 93216-5103
Dated: July 26, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk
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