Thomas v. Brock

          ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK

          EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE

         Plaintiff, a state inmate at the California Health Care Facility, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against prison officials at Pelican Bay State Prison (“PBSP”). Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a separate order.

         DISCUSSION

         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 upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 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 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. See West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Plaintiff’s Claims

         Plaintiff claims that between June 28, 2015 and September 7, 2015, while housed at PBSP’s Treatment Center under suicidal watch, Defendants refused to feed him on numerous occasions. (Compl. Attach. at 3.) Plaintiff claims that Defendants were each personally involved, condoned, or oversaw the “acts of not feeding” him because he had a milk carton in his assigned cell which he refused to relinquish. (Id.) Plaintiff claims that although he presented no threat to Defendants, they refused him food as “incentive or punishment.” (Id.) Liberally construed, Plaintiff’s allegations are sufficient to state a claim under the Eighth Amendment as a serious deprivation of a basic necessity. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Johnson v. Lewis, 217 F.3d 726, 732-733 (9th Cir. 2000).

         CONCLUSION

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

         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 of the complaint, all attachments thereto, and a copy of this order upon Defendants Sgt. D. Brock, Sgt. Caraway, Sgt. J. Simpson; and Correctional Officers S. Owen, and J. Simpson at Pelican Bay State Prison (P.O. Box 7000, Crescent City, CA 95531). The Clerk shall also mail a copy of this Order to Plaintiff.

         2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of such service unless good cause shown for their failure to sign and return the waiver form. If service is waived, this action will proceed as if Defendants had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty (60) days from the day on which the request for waiver was sent. (This allows a longer time to respond than would be required if formal service of summons is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If service is waived after the date provided in the Notice but before Defendants have been personally served, the Answer shall be due sixty (60) days from the date on which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later.

         3. No later than ninety-one (91) 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 found to be cognizable above.

         a. 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. 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 opinion that this case cannot be ...