Lomack v. CDCR

Filing 16

ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION FOR NOTICE REGARDING SUCH MOTION; INSTRUCTION TO CLERK. 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 amended complaint, (Docket No. 15), all attachments thereto, and a copy of this order upon Defendants Dr. N. Harris and Dr. L. Gamboa at Salinas Valley State Prison (P.O. Box 1020, Soledad, CA 93960-1020). The Cle rk shall also mail a copy of this Order to Plaintiff. All other Defendants are DISMISSED from this action Plaintiff has made no specific claims against them. Habeas Answer or Dispositive Motion due by 7/6/2017. Responses due by 8/3/2017. Replies due by 8/17/2017. Signed by Judge Edward J. Davila on 4/5/2017. (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 4/5/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LAMONT LOMACK,
United States District Court
Northern District of California

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Plaintiff,

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v.

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N. HARRIS, et al.,
Defendants.

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Case No. 16-02444 EJD (PR)
ORDER OF SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION; INSTRUCTIONS TO
CLERK

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Plaintiff, a California state prisoner, filed the instant pro se civil rights action

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pursuant to 42 U.S.C. § 1983 against medical officials at Salinas Valley State Prison

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(“SVSP”). After an initial review, the Court found the complaint was attempting to state a

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claim under the Eighth Amendment for deliberate indifference to serious medical needs.

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(Docket No. 14 at 2-3.) However, Plaintiff failed to identify a specific individual as a

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defendant whose actions caused the violation. (Id. at 3.) The Court also advised Plaintiff

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that a claim of “medical neglect” was insufficient to make out a violation of the Eighth

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Amendment, and that any such claim would be dismissed for failure to state a claim. (Id.

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at 3-4.) Plaintiff has filed an amended complaint. (Docket No. 15.)

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

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upon which relief may be granted or seek monetary relief from a defendant who is immune

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from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally

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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

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United States District Court
Northern District of California

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Plaintiff’s Claims
Plaintiff claims that on November 24, 2014, he injured his left hand at SVSP. (Am.

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Compl. at 3.) He brought it to the attention of Defendants Dr. N. Harris and Dr. L.

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Gamboa “with negative results.” (Id.) About four months later, he was sent to an outside

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hospital where it was discovered that he had a serious injury to his left hand but since “it

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had been so long,” there was “nothing they could do.” (Id.) Plaintiff received injections in

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his left hand as well as medication. (Id.) Plaintiff claims that he suffers chronic pain and

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that they continue to deny him proper medical attention. (Id.) Liberally construed,

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Plaintiff states a cognizable claim of deliberate indifference to serious medical needs under

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the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Plaintiff names the CDCR as a defendant “in the official capacity” but has made no

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specific allegations of wrongdoing. Accordingly, the CDCR is DISMISSED from this

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action.

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CONCLUSION

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For the reasons state above, the Court orders as follows:

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1.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for

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Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy

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of the amended complaint, (Docket No. 15), all attachments thereto, and a copy of this

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order upon Defendants Dr. N. Harris and Dr. L. Gamboa at Salinas Valley State

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Prison (P.O. Box 1020, Soledad, CA 93960-1020). The Clerk shall also mail a copy of

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this Order to Plaintiff.

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United States District Court
Northern District of California

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All other Defendants are DISMISSED from this action Plaintiff has made no
specific claims against them.
2.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil

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Procedure requires them to cooperate in saving unnecessary costs of service of the

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summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this

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action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail

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to do so, they will be required to bear the cost of such service unless good cause shown for

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their failure to sign and return the waiver form. If service is waived, this action will

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proceed as if Defendants had been served on the date that the waiver is filed, except that

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pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer

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before sixty (60) days from the day on which the request for waiver was sent. (This

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allows a longer time to respond than would be required if formal service of summons is

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necessary.) Defendants are asked to read the statement set forth at the foot of the waiver

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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

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before Defendants have been personally served, the Answer shall be due sixty (60) days

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from the date on which the request for waiver was sent or twenty (20) days from the date

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the waiver form is filed, whichever is later.

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3.

No later than ninety-one (91) days from the date of this order, Defendants
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shall file a motion for summary judgment or other dispositive motion with respect to the

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claims in the complaint found to be cognizable above.
a.

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Any motion for summary judgment shall be supported by adequate

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

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Civil 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 any Defendant is of the

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

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Court prior to the date the summary judgment motion is due.
b.

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In the event Defendants file a motion for summary judgment, the

Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate

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United States District Court
Northern District of California

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warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See

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Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012).

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4.

Plaintiff’s opposition to the dispositive motion shall be filed with the Court

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and served on Defendants no later than twenty-eight (28) days from the date Defendants’

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motion is filed.

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Plaintiff is also 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

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

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element of his claim). Plaintiff is cautioned that failure to file an opposition to

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Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to

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the granting of the motion, and granting of judgment against Plaintiff without a trial. See

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Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18

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F.3d 651, 653 (9th Cir. 1994).

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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

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Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true

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copy of the document to Defendants or Defendants’ counsel.

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8.

Discovery may be taken in accordance with the Federal Rules of Civil

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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local

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Rule 16-1 is required before the parties may conduct discovery.

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9.

It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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court 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

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United States District Court
Northern District of California

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prosecute pursuant to Federal Rule of Civil Procedure 41(b).
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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.

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4/5/2017
Dated: _____________________

________________________
EDWARD J. DAVILA
United States District Judge

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Order of Service
PRO-SE\EJD\CR.16\02444Lomack_svc

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