Cruz v. Ahmed

Northern District of California, cand-4:2015-cv-01855

ORDER OF SERVICE. Signed by Judge Kandis A. Westmore on 8/7/15.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SANTIAGO CRUZ, 7 Case No. 15-cv-01855-KAW Plaintiff, 8 ORDER OF SERVICE v. 9 ZAHED UDDIN AHMED and JOHN DOES 10 1-10, 11 Defendants. 12 Northern District of California United States District Court 13 Plaintiff Santiago Cruz, a state prisoner incarcerated at the California Training Facility 14 ("CTF") in Soledad, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the 15 violation of his constitutional rights by Dr. Zahed Uddin Ahmed and Doe Defendants. Plaintiff 16 has consented to the jurisdiction of the undersigned United States Magistrate Judge over this 17 action. Plaintiff has filed a motion for leave to proceed in forma pauperis ("IFP"), which is 18 granted in a separate order. The Court now addresses the claims asserted in Plaintiff's complaint. 19 DISCUSSION 20 I. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 22 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 24 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 25 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 26 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 27 Cir. 1988). 28 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 1 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 2 the alleged violation was committed by a person acting under the color of state law. West v. 3 Atkins, 487 U.S. 42, 48 (1988). 4 Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the 5 plaintiff can show that the defendant's actions both actually and proximately caused the 6 deprivation of a federally protected right. Lemire v. Caifornia Dep't of Corrections & 7 Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 8 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives 9 another of a constitutional right within the meaning of § 1983 if he does an affirmative act, 10 participates in another's affirmative act or omits to perform an act which he is legally required to 11 do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. 12 Under no circumstances is there respondeat superior liability under § 1983. Lemire, 756 Northern District of California United States District Court 13 F.3d at 1074. Or, in layman's terms, under no circumstances is there liability under section 1983 14 solely because one is responsible for the actions or omissions of another. Taylor v. List, 880 F.2d 15 1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 16 680-81 (9th Cir. 1984). A supervisor may be liable under § 1983 upon a showing of (1) personal 17 involvement in the constitutional deprivation or (2) a sufficient causal connection between the 18 supervisor's wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 19 1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). It is 20 insufficient for a plaintiff only to allege that supervisors knew about the constitutional violation 21 and that they generally created policies and procedures that led to the violation, without alleging 22 "a specific policy" or "a specific event" instigated by them that led to the constitutional violations. 23 Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012). 24 II. Plaintiff's Claims 25 The following is a summary of the allegations in Plaintiff's complaint. On May 5, 2014, 26 Plaintiff was assaulted by an inmate and he was rushed to an outside hospital. After Plaintiff's 27 return from the hospital, Dr. Ahmed "would choose to see Plaintiff for his pain and injuries thirty 28 days later." During the thirty days, Plaintiff suffered extreme pain due to fractured ribs. Plaintiff 2 1 could not eat or breathe correctly because of the fractured ribs. 2 A. Doe Defendants 3 Plaintiff names Dr. Ahmed and John Does 1-10. Although the use of "John Doe" to 4 identify a defendant is not favored in the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 5 642 (9th Cir. 1980); Wiltsie v. Cal. Dep't of Corrections, 406 F.2d 515, 518 (9th Cir. 1968), 6 situations may arise where the identity of alleged defendants cannot be known prior to the filing of 7 a complaint. In such circumstances, the plaintiff should be given an opportunity through 8 discovery to identify the unknown defendants, unless it is clear that discovery would not uncover 9 their identities or that the complaint should be dismissed on other grounds. Gillespie, 629 F.2d at 10 642; Velasquez v. Senko, 643 F. Supp. 1172, 1180 (N.D. Cal. 1986). Plaintiff must provide to the 11 Court the name of the John Doe defendants by the date scheduled for defendants to file their 12 dispositive motion. Failure to do so will result in dismissal of these defendants without prejudice Northern District of California United States District Court 13 to Plaintiff filing a new action against them. 14 B. Deliberate Indifference to Serious Medical Needs 15 Deliberate indifference to a prisoner's serious medical needs violates the Eighth 16 Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 17 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 18 1133, 1136 (9th Cir. 1997) (en banc). A prison official violates the Eighth Amendment when two 19 requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the 20 official is, subjectively, deliberately indifferent to the inmate's health or safety. Farmer v. 21 Brennan, 511 U.S. 825, 834 (1994). A "serious" medical need exists if the failure to treat a 22 prisoner's condition could result in further significant injury or the "unnecessary and wanton 23 infliction of pain." McGuckin, 974 F.2d at 1059. A prison official exhibits deliberate indifference 24 when he knows of and disregards a substantial risk of serious harm to inmate health or safety. 25 Farmer, 511 U.S. at 837. Such indifference may appear when prison officials deny, delay or 26 intentionally interfere with medical treatment, or it may be shown in the way in which prison 27 officials provide medical care. McGuckin, 974 F.2d at 1062 (delay of seven months in providing 28 medical care during which medical condition was left virtually untreated and plaintiff was forced 3 1 to endure "unnecessary pain" sufficient to present colorable § 1983 claim). 2 Plaintiff's allegations meet the objective prong of the Farmer test in that his fractured ribs 3 appear to be a serious medical need. Liberally construed, the allegations also appear to meet 4 Farmer's subjective prong because they indicate that Dr. Ahmed knew of Plaintiff's fractured ribs 5 and delayed treating him for thirty days, causing Plaintiff to endure extreme pain during that time. 6 CONCLUSION 7 For the foregoing reasons, the Court orders as follows: 8 1. Plaintiff states a cognizable Eighth Amendment claim for deliberate indifference to his 9 serious medical needs against Dr. Ahmed. 10 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 11 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 12 (docket no. 1) and all attachments thereto, a copy of this Order and a copy of the form "Consent or Northern District of California United States District Court 13 Declination to Magistrate Judge Jurisdiction" to CTF Defendant Dr. Zahed Uddin Ahmed. This 14 form can also be found at The Clerk shall also mail a copy of 15 the complaint and a copy of this Order to the State Attorney General's Office in San Francisco, 16 and a copy of this Order to Plaintiff. 17 3. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure require him 18 to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to 19 Rule 4, if Defendant, after being notified of this action and asked by the Court, on behalf of 20 Plaintiff, to waive service of the summons, fails to do so, he will be required to bear the cost of 21 such service unless good cause be shown for his failure to sign and return the waiver forms. If 22 service is waived, this action will proceed as if Defendant had been served on the date that the 23 waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be required to serve 24 and file an answer before sixty days from the date on which the request for waiver was sent. (This 25 allows a longer time to respond than would be required if formal service of summons is 26 necessary.) 27 Defendant is advised to read the statement set forth at the foot of the waiver form that more 28 completely describes the duties of the parties with regard to waiver of service of the summons. If 4 1 service is waived after the date provided in the Notice but before Defendant has been personally 2 served, the answer shall be due sixty days from the date on which the request for waiver was sent 3 or twenty days from the date the waiver form is filed, whichever is later. 4 4. Defendant shall file his Consent or Declination to Magistrate Judge Jurisdiction on or 5 before the date his answer is due. 6 5. The following briefing schedule shall govern dispositive motions in this action: 7 a. No later than thirty days from the date his answer is due, Defendant shall file a 8 motion for summary judgment or other dispositive motion. If Defendant files a motion for 9 summary judgment, it shall be supported by adequate factual documentation and shall conform in 10 all respects to Federal Rule of Civil Procedure 56. If Defendant is of the opinion that this case 11 cannot be resolved by summary judgment, he shall so inform the Court prior to the date the 12 summary judgment motion is due. All papers filed with the Court shall be promptly served on Northern District of California United States District Court 13 Plaintiff. 14 At the time of filing the motion for summary judgment or other dispositive motion, 15 Defendant shall comply with the Ninth Circuit's decision in Woods v. Carey, 684 F.3d 934 (9th 16 Cir. 2012), and provide Plaintiff with notice of what is required of him to oppose a summary 17 judgment motion. 18 b. Plaintiff's opposition to the motion for summary judgment or other dispositive 19 motion shall be filed with the Court and served on Defendant no later than twenty-eight days after 20 the date on which Defendant's motion is filed. The Ninth Circuit has held that the following notice 21 should be given to pro se plaintiffs facing a summary judgment motion: 22 The defendants have made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules 23 of Civil Procedure will, if granted, end your case. 24 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 25 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 26 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 27 judgment that is properly supported by declarations (or other sworn testimony), you cannot 28 simply rely on what your complaint says. Instead, you must set out specific facts in 5 declarations, depositions, answers to interrogatories, or authenticated documents, as 1 provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and 2 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 3 entered against you. If summary judgment is granted [in favor of the defendants], your case will be dismissed and there will be no trial. 4 Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). 5 Before filing his opposition, Plaintiff is advised to read the notice that will be provided to 6 him by Defendant when the motion is filed, and Rule 56 of the Federal Rules of Civil Procedure 7 and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come 8 forward with evidence showing triable issues of material fact on every essential element of his 9 claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this 10 case, he must be prepared to produce evidence in support of those allegations when he files his 11 opposition to Defendant's summary judgment motion. Such evidence may include sworn 12 Northern District of California declarations from himself and other witnesses to the incident, and copies of documents United States District Court 13 authenticated by sworn declaration. Plaintiff will not be able to avoid summary judgment simply 14 by repeating the allegations of his complaint. 15 c. Defendant shall file a reply brief no later than fourteen days after the date 16 Plaintiff's opposition is filed. 17 d. The motion shall be deemed submitted as of the date the reply brief is due. No 18 hearing will be held on the motion unless the Court so orders at a later date. 19 6. Discovery may be taken in this action in accordance with the Federal Rules of Civil 20 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendant to depose 21 Plaintiff and any other necessary witnesses confined in prison. 22 7. All communications by Plaintiff with the Court must be served on Defendant, or 23 Defendant's counsel once counsel has been designated, by mailing a true copy of the document to 24 Defendant or his counsel. 25 8. It is Plaintiff's responsibility to prosecute this case. He must keep the Court informed 26 of any change of address and must comply with the Court's orders in a timely fashion. 27 9. Extensions of time are not favored, though reasonable extensions will be granted. Any 28 6 1 motion for an extension of time must be filed no later than fourteen days prior to the deadline 2 sought to be extended. 3 IT IS SO ORDERED. 4 Dated: August 7, 2015 5 ______________________________________ KANDIS A. WESTMORE 6 United States Magistrate Judge 7 8 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7