Chavez-Alvarez v. San Jose Police Department et al
Filing
10
ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTIONS OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS 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. 7), all attachments thereto, and a copy of this order upon Defendant Officer Monzon (Badge # 4147) at the San Jose Police Department(201 W. Mission Street, San Jose, CA 95110). The C lerk shall also mail a copy of this Order to Plaintiff. All other Defendants are DISMISSED from this action. Habeas Answer or Dispositive Motion due by 7/5/2017. Responses due by 8/2/2017. Replies due by 8/16/2017. Signed by Judge Edward J. Davila on 4/5/2017. (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 4/5/2017)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
RAFAEL CHAVEZ-ALVAREZ,
United States District Court
Northern District of California
11
Plaintiff,
12
v.
13
14
SAN JOSE POLICE DEPT., et al.,
Defendants.
15
Case No. 16-02796 EJD (PR)
ORDER OF SERVICE; DIRECTING
DEFENDANT TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION; INSTRUCTIONS TO
CLERK
16
17
Plaintiff, a California state prisoner, filed the instant pro se civil rights action
18
19
pursuant to 42 U.S.C. § 1983 against the San Jose Police Department (“SJPD”) and its
20
officers. After an initial review, the Court found the complaint was attempting to state an
21
excessive force claim, (Docket No. 6 at 2.) However, Plaintiff failed to specify how each
22
of the eight defendants caused his injuries. (Id.) Plaintiff was given leave to file an
23
amended complaint to correct this deficiency. (Id. at 3.) Plaintiff has filed an amended
24
complaint. (Docket No. 7.)
25
DISCUSSION
26
27
28
A.
Standard of Review
A federal court must conduct a preliminary screening in any case in which a
1
prisoner seeks redress from a governmental entity or officer or employee of a
2
governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any
3
cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim
4
upon which relief may be granted or seek monetary relief from a defendant who is immune
5
from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally
6
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
7
8
elements: (1) that a right secured by the Constitution or laws of the United States was
9
violated, and (2) that the alleged violation was committed by a person acting under the
color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
11
United States District Court
Northern District of California
10
B.
12
Plaintiff’s Claims
Plaintiff claims that on February 9, 2014, he was shot multiple times by two or
13
more officers and repeatedly tasered during the course of his arrest, which amounted to
14
excessive force. (Am. Compl. at 3.) Plaintiff names Defendant Officer Monzon as one of
15
the officers who shot and struck him twice with bullets. (Id.) Liberally construed,
16
Plaintiff’s allegations are sufficient to indicate that excessive force may have been used
17
during the course of his arrest which is a valid claim under § 1983. See Rutherford v. City
18
of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled on other grounds by Graham
19
v. Connor, 490 U.S. 386 (1989).
20
Plaintiff also names other officers of the San Jose Police Department, (Am. Compl.
21
at 2), but fails to explain how each of the officers acted during the course of his arrest to
22
establish a claim against them. As explained in the previous court order, without an
23
adequate description of the specific acts each individual defendant allegedly committed,
24
and how the alleged acts violated his constitutional rights, the Court cannot determine
25
whether Plaintiff has stated claims for relief against each named defendant. (Docket No. 6
26
at 3.) Accordingly, the other named officers shall be dismissed from this action without
27
prejudice until such time Plaintiff, through discovery, is able to establish their involvement
28
2
1
in the excessive force claim arising out of the February 9, 2014 arrest. He may do so by
2
filing a motion to add newly identified defendants, as they become known, along with a
3
supplemental complaint describing their unlawful actions. See Brass v. County of Los
4
Angeles, 328 F.3d 1192, 1195–98 (9th Cir. 2003).
5
CONCLUSION
6
7
For the reasons state above, the Court orders as follows:
8
1.
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
10
of the amended complaint, (Docket No. 7), all attachments thereto, and a copy of this order
11
United States District Court
Northern District of California
9
upon Defendant Officer Monzon (Badge # 4147) at the San Jose Police Department
12
(201 W. Mission Street, San Jose, CA 95110). The Clerk shall also mail a copy of this
13
Order to Plaintiff.
14
All other Defendants are DISMISSED from this action.
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-one (91) days from the date of this order, Defendants
5
shall file a motion for summary judgment or other dispositive motion with respect to the
6
claims 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
4/5/2017
Dated: _____________________
________________________
EDWARD J. DAVILA
United States District Judge
20
21
22
23
24
25
Order of Service
PRO-SE\EJD\CR.16\02796Chavez-Alvarez_svc
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?