United States District Court, Northern District of California
December 17, 2014
GUSTAVO MCKENZIE, Plaintiff,
D. MILLER; C. NGUYEN; YAMILETH SIMMONS; N. ADAM; L. BREE; D. LAFEVER; S. PENKIAN; S. RISENHOOVER; C. RUSSELL; J. TORRANCE; J. CLARK KELSO, Defendants.
ORDER OF SERVICE; INSTRUCTIONS TO CLERK
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42 U.S.C. 1983 against medical personnel at Pelican Bay State Prison ("PBSP") where he was formerly incarcerated. He is granted leave to proceed in forma pauperis in a separate order. For the reasons discussed below, the complaint is ordered served upon the other two defendants.
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 be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
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 plaintiffs 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.
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. Legal Claims
When liberally construed, plaintiffs allegations state cognizable claims that defendants violated his rights under the Eighth Amendment by being deliberately indifferent to his serious medical needs, and that they violated his First Amendment rights by retaliating against him for exercising such rights.
For the reasons set out above, it is hereby ordered as follows:
1. The clerk shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the complaint with all attachments thereto, and a copy of this order upon defendants Nurse D. Miller; Dr. C. Nguyen; Nurse Yamileth Simmons; Dr. N. Adam; Nurse L. Bree; Optometrist D. Lafever; Nurse S. Penkian; Nurse Practitioner S. Risenhoover; Nurse C. Russell; and Medical Appeals Coordinator J. Torrance at Pelican Bay State Prison, and Receiver J. Clark Kelso. A courtesy copy of the complaint with attachments and this order shall also be mailed to the California Attorney General's Office.
3. Defendant shall file an answer 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, defendant shall file a motion for summary judgment or other dispositive motion. If defendant is of the opinion that this case cannot be resolved by summary judgment, he 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. Plaintiffs opposition to the dispositive motion, if any, shall be filed with the court and served upon defendant 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).
c. Defendant 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 his motion, defendant shall proof that they served plaintiff the Rand warning at the same time they served him with their motion. Failure to do so will result in the summary dismissal of their motion.
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 plaintiffs 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.
NOTICE - WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact—that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.