Velasquez v. U. S. Marshal et al

Filing 16

ORDER OF SERVICE. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the second amended complaint, (Docket No. 15), all attachments thereto, and a copy of this order upon Defendants Sgt. N. Chorley (Star #270), Sgt. Manning, Sgt. Chaplin, Officer Espinosa (#1449), Officer Sakurai (#2215), Officer Silver (#4238), and Officer Robinson at the San Francisco Police Department, (Police Legal, Room 575 (5th Floor), Hall of Justice, 850 Bryant Street); and Defendant Detective Greg Oglesby at the Daly City Police Department, (333 90th St., Daly City, CA 94015). The Clerk shall also mail a copy of this Order to Plaintiff. All other Defendants are DISMISSED from this action as Plaintiff has not named them in the second amended complaint, which is the operative complaint in this action. The Clerk shall terminate them from the docket. Habeas Answer or Dispositive Motion due by 7/25/2016. Signed by Judge Edward J. Davila on 5/20/2016. (Attachments: # 1 Certificate/Proof of Service)(ecg, COURT STAFF) (Filed on 5/25/2016)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 DANILO ARTURO VELASQUEZ, United States District Court Northern District of California 11 Plaintiff, 12 v. 13 14 N. CHORLEY, et al., Defendants. 15 Case No. 15-02535 EJD (PR) ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK 16 17 Plaintiff, a federal prisoner, filed the instant pro se civil rights action pursuant to 42 18 19 U.S.C. § 1983 against police officers. The Court dismissed the complaint with leave to 20 amend to identify at least one John Doe defendant by name. (Docket No. 7.) Plaintiff 21 filed an amended complaint which was also dismissed with leave to amend to correct 22 deficiencies. (Docket No. 12.) Plaintiff filed a second amended complaint (“SAC”). 23 (Docket No. 15.) 24 DISCUSSION 25 26 27 28 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 B. Plaintiff claims that on or about July 8, 20091, officers from the San Francisco 11 United States District Court Northern District of California Plaintiff’s Claims 12 Police Department used excessive force during the course of an arrest, and that Detective 13 Greg Oglesby at the Daly City Police Department used excessive force when he exercised 14 his right to remain silent. (SAC at 3-4.) These allegations are sufficient to state 15 cognizable § 1983 claims as violations of Plaintiff’s rights under the Fourth Amendment. 16 See Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled on 17 other grounds by Graham v. Connor, 490 U.S. 386 (1989); Pierce v. Multnomah County, 18 Oregon, 76 F.3d 1032, 1043 (9th Cir. 1996) (Fourth Amendment protects arrestees from 19 use of excessive force until release or arraignment). Although Plaintiff claims Defendants 20 also violated his Eighth Amendment right against cruel and unusual punishment, excessive 21 force used during the course of an arrest and prior to arraignment is only analyzed under 22 the Fourth Amendment reasonableness standard, see Graham v. Connor, 490 U.S. 386, 23 394-95 (1989). Accordingly, his claim under the Eighth Amendment is DISMISSED. 24 /// 25 1 26 27 28 Plaintiff requests tolling of the statute of limitations due to his extensive injuries and his transfers from prison to prison which prevented him filing this action sooner. (SAC at 4.) The Court will not address the timeliness of this action unless Defendants choose to raise the issue as an affirmative defense. 2 CONCLUSION 1 For the reasons state above, the Court orders as follows: 2 3 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 4 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 5 of the second amended complaint, (Docket No. 15), all attachments thereto, and a copy of 6 this order upon Defendants Sgt. N. Chorley (Star #270), Sgt. Manning, Sgt. Chaplin, 7 Officer Espinosa (#1449), Officer Sakurai (#2215), Officer Silver (#4238), and Officer 8 Robinson at the San Francisco Police Department, (Police Legal, Room 575 (5th Floor), 9 Hall of Justice, 850 Bryant Street); and Defendant Detective Greg Oglesby at the Daly City Police Department, (333 90th St., Daly City, CA 94015). The Clerk shall also mail 11 United States District Court Northern District of California 10 a copy of this Order to Plaintiff. 12 All other Defendants are DISMISSED from this action as Plaintiff has not named 13 them in the second amended complaint, which is the operative complaint in this action. 14 The Clerk shall terminate them from the docket. 15 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 16 Procedure requires them to cooperate in saving unnecessary costs of service of the 17 summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this 18 action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail 19 to do so, they will be required to bear the cost of such service unless good cause shown for 20 their failure to sign and return the waiver form. If service is waived, this action will 21 proceed as if Defendants had been served on the date that the waiver is filed, except that 22 pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer 23 before sixty (60) days from the day on which the request for waiver was sent. (This 24 allows a longer time to respond than would be required if formal service of summons is 25 necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 26 form that more completely describes the duties of the parties with regard to waiver of 27 service of the summons. If service is waived after the date provided in the Notice but 28 3 1 before Defendants have been personally served, the Answer shall be due sixty (60) days 2 from the date on which the request for waiver was sent or twenty (20) days from the date 3 the waiver form is filed, whichever is later. 4 3. No later than ninety (90) days from the date of this order, Defendants shall 5 file a motion for summary judgment or other dispositive motion with respect to the claims 6 in the complaint found to be cognizable above. a. 7 Any motion for summary judgment shall be supported by adequate 8 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 9 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor qualified immunity found, if material facts are in dispute. If any Defendant is of the 11 United States District Court Northern District of California 10 opinion that this case cannot be resolved by summary judgment, he shall so inform the 12 Court prior to the date the summary judgment motion is due. b. 13 In the event Defendants file a motion for summary judgment, the 14 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 15 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 16 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 17 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 18 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 19 motion is filed. 20 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 21 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 22 must come forward with evidence showing triable issues of material fact on every essential 23 element of his claim). Plaintiff is cautioned that failure to file an opposition to 24 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 25 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 26 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 27 F.3d 651, 653 (9th Cir. 1994). 28 4 1 2 3 4 5 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 6 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 7 copy of the document to Defendants or Defendants’ counsel. 8 9 10 United States District Court Northern District of California 11 8. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required before the parties may conduct discovery. 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 12 court informed of any change of address and must comply with the court’s orders in a 13 timely fashion. Failure to do so may result in the dismissal of this action for failure to 14 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 15 16 17 10. Extensions of time must be filed no later than the deadline sought to be extended and must be accompanied by a showing of good cause. IT IS SO ORDERED. 18 19 Dated: _____________________ 5/20/2016 ________________________ EDWARD J. DAVILA United States District Judge 20 21 22 23 24 25 26 27 28 5

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