Swanson v. Jiminez et al

Filing 8

ORDER OF SERVICE; DENY MOTION 4 FOR LEAVE TO PROCEED IN FORMA PAUPERIS AS MOOT; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK. Signed by Judge Edward J. Davila on 9/9/2020. (amkS, COURT STAFF) (Filed on 9/9/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 5:20-cv-03035-EJD Document 8 Filed 09/09/20 Page 1 of 5

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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NICHOLAS SWANSON,

Case No. 20-03035 EJD (PR)

Plaintiff,

ORDER OF SERVICE; DENY
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS AS MOOT;
DIRECTING DEFENDANTS TO FILE
DISPOSITIVE MOTION OR NOTICE
REGARDING SUCH MOTION;
INSTRUCTIONS TO CLERK

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v.

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K. JIMINEZ, et al.,

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Defendants.

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(Docket No. 4)

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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 officers at Salinas Valley State Prison (“SVSP”).
Dkt. No. 1. Plaintiff has paid the filing fee. Id.

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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

prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any
cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

Case 5:20-cv-03035-EJD Document 8 Filed 09/09/20 Page 2 of 5

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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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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 August 28, 2019, at approximately 4:00 a.m., he attempted

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to commit suicide by cutting his left arm. Dkt. No. 1 at 3. During security check at 4:15

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United States District Court
Northern District of California

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a.m., Plaintiff notified Defendant Jiminez of his attempted suicide and showed him his left

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arm which was bleeding profusely. Id. Plaintiff also swallowed the piece of metal that he

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used to cut his arm in front of Defendant Jiminez. Id. Rather than activating his alarm,

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Defendant Jiminez told Plaintiff that he would notify the unit Sergeant, presumably

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Defendant Machuca, and walked away. Id. As Defendant Jiminez was walking away,

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Plaintiff told him that he was still suicidal and needed medical attention, having lost a lot

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of blood and feeling dizzy. Id. When Defendant Jiminez returned later for a second

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security check, Plaintiff repeated that he was still suicidal and needed medical attention for

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his arm; Defendant Jiminez informed Plaintiff that he was still waiting on the Sergeant. Id.

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At the third security check, Plaintiff again informed Defendant that he was suicidal and

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needed medical attention. Id. Defendant Jiminez informed Plaintiff: “‘I don’t know if the

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Sergeant is going to leave your problem for second-watch or what. [B]ut I called him, and

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I will be here second-watch.’” Id. Defendant Jiminez then walked away. Id. Plaintiff

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subsequently swallowed 30 pills of Zeprexa in front of the second watch staff, who

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activated the alarm and sent Plaintiff to the Prison Hospital. Id. at 4. Plaintiff was then

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sent to an outside hospital where he received treatment for the swallowed piece of metal

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and drug overdose. Id. The prison psychiatrist later determined that Plaintiff was

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Case 5:20-cv-03035-EJD Document 8 Filed 09/09/20 Page 3 of 5

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suffering from a severe mental health crisis, and transported Plaintiff to the California

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Men’s Colony (“CMC” for a crisis bed. Id. Plaintiff claims that Defendants Jiminez and

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Machuca acted with deliberate indifference towards his serious medical and mental health

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needs. Liberally construed, Plaintiff’s allegations are sufficient to state an Eighth

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Amendment deliberate indifference claim against Defendants. See Farmer v. Brennan, 511

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U.S. 825, 834 (1994); Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994); Conn v.

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City of Reno, 591 F.3d 1081, 1094 (9th Cir. 2010).

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CONCLUSION

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

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United States District Court
Northern District of California

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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 complaint, all attachments thereto, and a copy of this order upon Defendants

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Correctional Officer K. Jiminez and Sgt. R. Machuca at Salinas Valley State Prison

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

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to Plaintiff.

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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 amended complaint. Pursuant to Rule 4, if Defendants, after being

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notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the

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summons, fail to do so, they will be required to bear the cost of such service unless good

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cause shown for their failure to sign and return the waiver form. If service is waived, this

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

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

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

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

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

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Case 5:20-cv-03035-EJD Document 8 Filed 09/09/20 Page 4 of 5

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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 this order is filed,

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Defendants shall file a motion for summary judgment or other dispositive motion with

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

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Any motion for summary judgment shall be supported by adequate

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

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United States District Court
Northern District of California

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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

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

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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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Case 5:20-cv-03035-EJD Document 8 Filed 09/09/20 Page 5 of 5

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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

United States District Court
Northern District of California

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

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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.
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Plaintiff’s motion for leave to proceed in forma pauperis is DENIED as moot

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since Plaintiff has paid the filing fee. Dkt. No. 4.

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This order terminates Docket No. 4.

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IT IS SO ORDERED.

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9/9/2020
Dated: _____________________

________________________
EDWARD J. DAVILA
United States District Judge

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Order of Service; Deny IFP as Moot
PRO-SE\EJD\CR.20\03035Swanson_svc

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