Sims v. Hedrick et al
Filing
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ORDER OF SERVICE AND DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE THAT SUCH MOTION IS UNWARRANTED. Signed by Judge Paul S. Grewal on 3/14/2016. (ofr, COURT STAFF) (Filed on 3/14/2016) (Additional attachment(s) added on 3/14/2016: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).
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IN THE UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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JAMES MARION SIMS,
Plaintiff,
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v.
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B. HEDRICK, et al.,
Defendants.
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Case No. C 15-3003 PSG (PR)
ORDER OF SERVICE AND
DIRECTING DEFENDANTS TO
FILE DISPOSITIVE MOTION
OR NOTICE THAT SUCH
MOTION IS UNWARRANTED
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James Marion Sims, proceeding pro se, filed an amended civil rights complaint pursuant
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to 42 U.S.C. § 1983.1 For the reasons stated below, the court serves the amended complaint on
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defendants, and directs them to file a dispositive motion or notice regarding such motion.
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I. 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.2 In its
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Sims has consented to magistrate judge jurisdiction. See Docket No. 1 at 4.
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2
See 28 U.S.C. § 1915A(a).
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Case No. C 15-3003 PSG (PR)
ORDER OF SERVICE AND DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION
OR NOTICE THAT SUCH MOTION IS UNWARRANTED
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review, the court must identify any cognizable claims and dismiss any claims that are frivolous,
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malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a
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defendant who is immune from such relief.3 Pro se pleadings must, however, be liberally
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construed.4
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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.5
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B.
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Sims’ Claims
Sims alleges that on August 10, 2013, Defendant Correctional Officer J. Collier injured
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Sims’ right shoulder. After the injury, Sims requested that Collier call for medical assistance
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several times, but Collier denied all of Sims’ requests, even though he knew that Sims was hurt
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and in pain. Later that day, Defendant Sgt. Tomasian approached Sims’ cell door and Sims told
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Tomasian that he needed medical attention because Collier had injured him. Sims showed
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Tomasian his bruised and swollen shoulder. Tomasian denied Sims’ requests to see a doctor,
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and continued to deny the requests for two months, even after Tomasian was told by medical
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staff that Sims was injured.
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Liberally construed, Sims states a cognizable claim that defendants exhibited deliberate
indifference to his serious medical needs.
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II. CONCLUSION
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The court orders as follows:
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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 amended
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complaint and all attachments thereto, a Magistrate Judge consent form, and a copy of this order
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See 28 U.S.C. § 1915A(b)(1), (2).
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See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
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See West v. Atkins, 487 U.S. 42, 48 (1988).
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Case No. C 15-3003 PSG (PR)
ORDER OF SERVICE AND DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION
OR NOTICE THAT SUCH MOTION IS UNWARRANTED
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to Correctional Officer J. Collier and Sergeant Tomasian at Salinas Valley State Prison.
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The Clerk also shall mail a courtesy copy of the amended complaint and a copy of this order to
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the California Attorney General’s Office.
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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 Sims, to waive service of the summons, fail to do so, they will be required to bear the
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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 Fed. R. Civ. P. 12(a)(1)(B), defendants will not be
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required to serve and file an answer before sixty (60) days from the date on which the request for
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waiver was sent. Defendants are asked to read the statement set forth at the bottom of the waiver
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form that more completely describes the duties of the parties with regard to waiver of service of
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the summons. If service is waived after the date provided in the Notice but before defendants
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have been personally served, the answer shall be due sixty (60) days from the date on which the
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request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever
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is later.
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3.
No later than sixty (60) days from the date the waiver is sent, defendants shall file
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one comprehensive motion for summary judgment or other dispositive motion with respect to the
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cognizable claim in the complaint. At that time, defendants shall also submit the Magistrate
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Judge’s consent form.
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Any motion for summary judgment shall be supported by adequate factual documentation
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and shall conform in all respects to Fed. R. Civ. P. 56. Defendants are advised that summary
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judgment cannot be granted, nor qualified immunity found, if material facts are in dispute. If
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defendants are of the opinion that this case cannot be resolved by summary judgment, they shall
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so inform the court prior to the date the summary judgment motion is due.
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4.
Sims’s opposition to the dispositive motion shall be filed with the court and
Case No. C 15-3003 PSG (PR)
ORDER OF SERVICE AND DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION
OR NOTICE THAT SUCH MOTION IS UNWARRANTED
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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. Sims is advised to read Rule 56 and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
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(holding party opposing summary judgment must come forward with evidence showing triable
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issues of material fact on every essential element of his claim).
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5.
Defendants shall file a reply brief no later than fourteen (14) days after Sims’
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opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due.
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No hearing will be held on the motion unless the court so orders at a later date.
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6.
All communications by Sims with the court must be served on defendants or
defendants’ counsel, by mailing a true copy of the document to defendants or defendants’
counsel.
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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 Sims’ responsibility to prosecute this case. Sims must keep the court and all
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parties informed of any change of address and must comply with the court’s orders in a timely
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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute
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pursuant to Fed. R. Civ. P. 41(b).
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IT IS SO ORDERED.
DATED: 3/14/2016
PAUL S. GREWAL
United States Magistrate Judge
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Case No. C 15-3003 PSG (PR)
ORDER OF SERVICE AND DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION
OR NOTICE THAT SUCH MOTION IS UNWARRANTED
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