May 1, 2013
ANDRE JONES, Plaintiff,
GROUNDS, Warden, et al., Defendants.
ORDER OF SERVICE
JEFFREY S. WHITE, District Judge.
Plaintiff, a California prisoner at the California Training Facility ("CTF"), filed this pro se civil rights complaint under 42 U.S.C. § 1983. His application to proceed in forma pauperis is granted in a separate order. The complaint is served upon certain defendants based upon the claims found cognizable below. The remaining claims are dismissed.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only "give the defendant fair notice of what the.... claim is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted). Although in order to state a claim a complaint "does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff claims that his Eighth Amendment rights were violated based upon defendants' deliberate indifference to his medical needs in two instances: he was not provided a gurney for transportation when he had a medical emergency based on severe back pain, and he was denied a two day "lay-in" following that emergency. These allegations, when liberally construed, state cognizable claims for relief against Defendants Grounds, Chudy, Walker, Childers, Hall and Arvin for their involvement in his medical care. Plaintiff names two additional defendants, Jacobson and Nixion, but does not allege that they participated in the medical care of Plaintiff or that they were involved in denying him the care he needed. Rather, he simply alleges in conclusory terms that they were supervisors who were generally responsible for the medical care of all inmates, which is not sufficient to state a "plausible" claim for relief against them. See Ashcroft v. Iqbal, 556 U.S. 662, 675-84 (2009); Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012).
Plaintiff also claims that Defendants Dixon, Grounds, Walker and Ellis improperly processed and denied his administrative grievances. Such claims are not cognizable because there is no constitutional right to a grievance procedure in prison. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Plaintiff also claims that these actions violated his constitutional right to access the courts. Plaintiff was not denied access to the courts because he has not alleged that he was prevented from pursuing his claims in court and indeed he has done so in the instant action. See Lewis v. Casey, 518 U.S. 343, 354-55 (1996) (access to courts claim requires showing that prison officials hindered plaintiff's efforts to pursue a non-frivolous claim in federal court). Consequently, the claims regarding the improper processing of administrative appeals and for denial of access to the courts will be dismissed.
For the reasons set out above, the Court orders as follows:
1. The claims under the Eighth Amendment for the deprivation of medical care against Defendants R. Grounds, Dr. M.J. Chudy, J. Walker, Registered Nurse Hall, Arvin, and Childers are, when liberally construed, cognizable. The remaining claims are DISMISSED.
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 and all attachments thereto, and a copy of this order upon Defendants Warden R. Grounds, Chief Medical> Officer Dr. M.J. Chudy, Registered Nurse Hall, Correctional Officer Arvin, and Correctional Officer Childers at the California Training Facility in Soledad, California, and upon Defendant J. Walker at the California Department of Corrections and Rehabilitation in Sacramento, California.
The Clerk shall also mail a courtesy copy of the complaint with all attachments thereto, and this order to the California Attorney General's Office.
The Clerk shall also serve a copy of this order on Plaintiff.
3. Defendants shall file an answer to the complaint in accordance with the Federal Rules of Civil Procedure.
4. In order to expedite the resolution of this case.
a. No later than 91 days from the date this order is filed, defendants shall file a motion for summary judgment or other dispositive motion. If defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the court prior to the date the summary judgment motion is due. All papers filed with the court shall be promptly served on the plaintiff.
b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the court and served upon defendants no later than 28 days from the date of service of the motion. Plaintiff must read the attached page headed "NOTICE - WARNING, " which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
If defendants file an unenumerated motion to dismiss claiming that plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take note of the attached page headed "NOTICE - WARNING (EXHAUSTION), " which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir.), cert. denied, Alameida v. Wyatt, 124 S.Ct. 50 (2003).
c. Defendants shall file a reply brief no later than 14 days after the date of service of the opposition.
d. 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.
e. Along with their motion, defendants shall proof that they served plaintiff the applicable warning(s) required by Woods v. Carey, No. 09-15548, slip op. 7871 (9th Cir. July 6, 2012) and/or Stratton v. Buck, No. 10-35656, slip op. 11477 (9th Cir. Sept. 19, 2012), at the same time they served him with their motion. Failure to do so will result in the summary dismissal of their motion without prejudice.
5. All communications by the plaintiff with the court must be served on defendant, or defendant's counsel once counsel has been designated, by mailing a true copy of the document to defendant or defendant's counsel.
6. 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.
7. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.