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Shove v. Ayers

November 7, 2008

THEODORE SHOVE, PLAINTIFF,
v.
WARDEN AYERS, DEFENDANT.



PARTIAL DISMISSAl; ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION

Plaintiff, a prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. On July 23, 2008, the court dismissed his complaint for failure to allege a cognizable claim under § 1983. On September 11, 2008, the court vacated its judgment and, upon reconsideration, granted plaintiff thirty days to file an amended complaint with cognizable claims. On October 6, 2008, plaintiff filed an amended complaint as ordered. The court will order service of the complaint on the named defendants.

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se pleadings must, however, be liberally construed. 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 elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

B. Plaintiff's Claim

Plaintiff alleges that defendants were deliberately indifferent to his serious medical needs. Specifically, he states that on October 5, 2004, when he was detained in a Los Angeles County facility, he was diagnosed with extremely high blood pressure, diabetes, server allergies, and prescribed specially made shoes and medication. When he was transferred to San Quentin State Prison, defendants disregarded plaintiff's requests for continued medication when his medication ran out and, defendants took away his specially made shoes as well. The lack of medication resulted plaintiff being covered in bleeding sores and plaintiff being in extreme pain in his feet, knees, back and hip, Liberally construed, plaintiff has stated a cognizable claim of a violation of his Eighth Amendment right to be free from cruel and unusual punishment.

C. Doe Defendants

Plaintiff names three "Doe" defendants in his complaint. The use of Doe defendants is not favored in the Ninth Circuit. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, where the identity of alleged defendants cannot be known prior to the filing of a complaint the plaintiff should be given an opportunity through discovery to identify them. Id. Failure to afford the plaintiff such an opportunity is error. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). Accordingly, the claim against Doe defendants is dismissed from this action without prejudice. Should plaintiff learn the identity of Doe defendants through discovery, he may move to file an amendment to the complaint to add them as named defendants. See Brass v. County of Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir. 2003).

CONCLUSION

1. Plaintiff's claim against Doe defendants is DISMISSED without prejudice and with leave to amend.

2. The clerk of the court shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the complaint, all attachments thereto, and a copy of this order upon: Warden Robert Ayers and Dr. Davy Wu atthe San Quentin State Prison in San Quentin, Californi. The clerk shall also mail a courtesy copy of this order and the complaint, with all attachments thereto, to the California Attorney General's Office.

3. No later than sixty (60) days from the date of this order, defendants shall file a motion for summary judgment or other dispositive motion with respect to the claims in the complaint as set forth above, or notify the court that they are of the opinion that this case cannot be resolved by such a motion.

a. If defendant elects to file a motion to dismiss on the grounds that plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), defendant shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003).

b. 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 Civil Procedure. Defendant is advised that summary judgment cannot be granted, nor qualified immunity found, if material facts are in dispute. If any defendant is of the opinion that this case cannot be resolved by ...


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