Sandoval v. Lewis et al

Filing 4

ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSIIVE MOTION OR NOTICE REGARDING SUCH MOTION. Signed by Judge Hon. Lucy H. Koh on 4/7/2016. (sms, COURT STAFF) (Filed on 4/7/2016)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ALFRED ARTHUR SANDOVAL,

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Plaintiff,

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v.
G. LEWIS, et al.,

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Defendants.

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No. C 16-0460 LHK (PR)
ORDER OF SERVICE;
DIRECTING DEFENDANTS TO
FILE DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION

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Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint under
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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 stated below, the court orders service upon defendants, and directs defendants to
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file a dispositive motion or notice regarding 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 28 U.S.C.
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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.
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Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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Pacifica Police 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 violation was committed by a person acting under the color of state law. See West v.

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Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff alleges that defendants knowingly housed him in the same section of the Secured

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Housing Unit with a known and documented enemy. In addition, plaintiff states that on

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February 1, 2014, Officer Westerman, the control booth officer, opened plaintiff’s cell door,

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releasing him from his cell at a time when plaintiff’s documented enemy had also been released

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and was in the yard. When plaintiff was close to the yard, plaintiff was attacked. Prison officials

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attempted to stop the attack, and as a result, plaintiff was shot by a 40 mm launcher and sprayed

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with pepper spray.

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Liberally construed, plaintiff has stated cognizable claims that defendants were
deliberately indifferent to his safety, in violation of the Eighth Amendment

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CONCLUSION
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 Former Warden G.

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Lewis, Associate Warden Dave Barneburg, Sgt. Jeremy Frisk, and Correctional Officer

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Robert Westerman, at Pelican Bay State Prison. The clerk of the court shall also mail a

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courtesy copy of the complaint and a copy of this order to the California Attorney General’s

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Office. Additionally, the clerk shall mail a copy of 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 be shown for their failure to sign and return the waiver
Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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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, and defendants will not be required to serve and file an answer before

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sixty (60) days from the date on which the request for waiver was sent. Defendants are asked to

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read the statement set forth at the bottom of the waiver form that more completely describes the

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duties of the parties with regard to waiver of service of the summons. If service is waived after

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the date provided in the Notice but before defendants have been personally served, the Answer

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shall be due sixty (60) days from the date on which the request for waiver was sent or twenty

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(20) days from the date the waiver form is filed, whichever is later.

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3.

No later than sixty (60) days from the date the waivers are sent from the court,

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defendants shall file a motion for summary judgment or other dispositive motion with respect to

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the cognizable claims in the complaint. Any motion for summary judgment shall be supported

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by adequate factual documentation and shall conform in all respects to Rule 56 of the Federal

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Rules of Civil Procedure. Defendants are advised that summary judgment cannot be

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granted, nor qualified immunity found, if material facts are in dispute. If defendants are of

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the opinion that this case cannot be resolved by summary judgment, they shall so inform

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the court 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

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Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must

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come forward with evidence showing triable issues of material fact on every essential element of

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his 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

or defendants’ counsel, by mailing a true copy of the document to defendants or defendants’
Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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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 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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IT IS SO ORDERED.
DATED: 4/7/2016
LUCY H. KOH
United States District Judge

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Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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