MacGregor v. Martin et al

Filing 7

ORDER OF SERVICE; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion. Dispositive Motion due by 11/12/2013. Signed by Judge Ronald M. Whyte on 8/12/13. (jg, COURT STAFF) (Filed on 8/12/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KEVIN A MACGREGOR,

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Plaintiff,

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v.
DR. MARTIN, et al.,

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Defendants.

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No. C 13-2309 RMW (PR)
ORDER OF SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION

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Plaintiff, a state prisoner proceeding pro se, filed a federal civil rights complaint pursuant
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to 42 U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis in a separate order.
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For the reasons that follow, the court orders service upon 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 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; Directings 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 alleges that, on October 18, 2005, while plaintiff was incarcerated at San

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Quentin State Prison (“SQSP”), Nurse Yan and Dr. Martin saw plaintiff in a “man down”

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emergency, looked at plaintiff’s protruding hernia, and took plaintiff’s vital signs. They did not

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treat or examine plaintiff’s extreme pain. On November 1, 2005, plaintiff’s “inginual hernia” on

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the left side of his genital again protruded out, and inmates nearby plaintiff’s cell called for “man

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down.” Correctional officers took plaintiff to the infirmary where Nurse Yan told them to put

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plaintiff in a holding tank to wait with other inmates who were waiting for treatment. At this

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point, plaintiff is curled up in a fetal position while holding his hand over his protruding hernia.

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After two hours, plaintiff asked Nurse Yan why he hasn’t been seen by the doctor yet. Nurse

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Yan informed plaintiff that Dr. Martin would not see plaintiff because plaintiff was scheduled for

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surgery, and there was nothing that they can do. Plaintiff told Nurse Yan that this was the third

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time she and Dr. Martin have treated plaintiff like this. Nurse Yan responded that unless it was a

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life-threatening condition, they did not have to see plaintiff. On November 8, 2005, plaintiff told

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a correctional officer that his hernia had been protruding for over an hour and plaintiff was in

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extreme pain. Correctional Officer Graves called the infirmary about plaintiff and Nurse Yan

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and Dr. Martin again refused to see him. Liberally construed, plaintiff states a cognizable claim

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of deliberate indifference to serious medical needs.

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On December 13, 2005, plaintiff was transferred from SQSP to High Desert State Prison,

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still awaiting his surgery. In his complaint, plaintiff makes similar claims against High Desert

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State Prison defendants Dr. Dial and G.W. James. However, because High Desert State Prison is

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in Susanville, California, which lies within the venue of the Eastern District of California, it is in

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the interests of justice and convenience of the parties for these claims to be pursued in the United
Order of Service; Directings Defendant to File Dispositive Motion or Notice Regarding Such Motion
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States District Court for the Eastern District of California. Therefore, defendants Dr. Dial and

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G.W. James are DISMISSED from this action, and petitioner may file a civil rights action in that

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venue if he wishes to pursue such claims.

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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 complaint

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and all attachments thereto (docket no. 1), and a copy of this order to Dr. Martin and Nurse

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Yan at SQSP.

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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.

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 is 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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3.

No later than ninety (90) days from the date of this order, defendants shall file a

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

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 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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5.

Defendants 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 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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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

Order of Service; Directings Defendant to File Dispositive Motion or Notice Regarding Such Motion
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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; Directings Defendant to File Dispositive Motion or Notice Regarding Such Motion
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

KEVIN ANTHONY MACGREGOR,

Case Number: CV13-02309 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
DOCTOR MARTIN MD 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 August 12, 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.

Kevin A. MacGregor
V-94008
California State Prison - Solano
PO Box 4000
Vacaville, CA 95696
Dated: August 12, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

KEVIN ANTHONY MACGREGOR,

Case Number: CV13-02309 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
DOCTOR MARTIN MD 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 August 12, 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.

Kevin A. MacGregor
V-94008
California State Prison - Solano
PO Box 4000
Vacaville, CA 95696
Dated: August 12, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk