Duron v. Beatty et al

Northern District of California, cand-4:2015-cv-03015

ORDER OF SERVICE. Habeas Answer or Dispositive Motion due by 3/7/2016. Signed by Judge Yvonne Gonzalez Rogers on 1/6/16.

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 MOSES J. DURON, 4 Case No. 15-cv-03015-YGR (PR) Plaintiff, 5 ORDER OF SERVICE v. 6 DR. GEORGE BEATTY, et al., 7 Defendants. 8 9 Plaintiff, a state prisoner currently incarcerated at San Quentin State Prison ("SQSP"), has 10 filed a pro se civil rights complaint under 42 U.S.C. § 1983. He alleges a claim of deliberate 11 indifference to medical needs against SQSP employees stemming from inadequate treatment for 12 his left knee pain. Dkt. 1 at 3. Northern District of California United States District Court 13 Plaintiff has filed a motion for leave to proceed in forma pauperis, which will be granted in 14 a separate written Order. 15 Venue is proper because the events giving rise to the claim are alleged to have occurred at 16 SQSP which is located in this judicial district. See 28 U.S.C. § 1391(b). 17 In his complaint, Plaintiff has named the following Defendants: SQSP Physician George 18 Beatty, M.D.; SQSP Registered Nurse Bill Honey; and SQSP Chief Medical Officer E. Tootell. 19 Plaintiff seeks injunctive relief and monetary damages. 20 DISCUSSION 21 I. STANDARD OF REVIEW 22 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 25 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 26 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 27 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 28 Cir. 1988). 1 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements, 2 namely that: (1) a right secured by the Constitution or laws of the United States was violated, and 3 (2) the alleged violation was committed by a person acting under the color of state law. West v. 4 Atkins, 487 U.S. 42, 48 (1988). 5 II. LEGAL CLAIM 6 Deliberate indifference to serious medical needs violates the Eighth Amendment's 7 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 8 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, 9 WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc); Jones v. 10 Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A determination of "deliberate indifference" involves 11 an examination of two elements: the seriousness of the prisoner's medical need and the nature of 12 the defendant's response to that need. See McGuckin, 974 F.2d at 1059. A "serious" medical Northern District of California United States District Court 13 need exists if the failure to treat a prisoner's condition could result in further significant injury or 14 the "unnecessary and wanton infliction of pain." Id. (citing Estelle v. Gamble, 429 U.S. at 104). 15 A prison official is deliberately indifferent if he or she knows that a prisoner faces a substantial 16 risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer 17 v. Brennan, 511 U.S. 825, 837 (1994). 18 Plaintiff's allegation that since February 5, 2015, he has suffered "great pain" to his left 19 knee (which initially required an M.R.I. and for which a knee replacement is now recommended 20 due to a "torn meniscus") supports an inference that he has serious medical needs. Dkts. 1 at 3, 6 21 at 1. Liberally construed, Plaintiff's allegations that SQSP prison medical staff failed to provide 22 adequate medical treatment for his left knee pain—by specifically denying his requests: for an ice 23 pack and a walking cane from Defendant Beatty; to be examined by Defendant Honey; and to 24 speak with Defendant Tootell—state a cognizable deliberate indifference claim against Defendants 25 Beatty, Honey and Tootell. Accordingly, this claim may proceed against these Defendants. 26 CONCLUSION 27 For the foregoing reasons, the Court orders as follows: 28 1. Plaintiff states a cognizable Eighth Amendment claim for deliberate indifference to 2 1 Plaintiff's serious medical needs against the named Defendants. 2 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 3 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 4 and all attachments thereto (dkt. 1) and a copy of this Order to the following Defendants: SQSP 5 Physician George Beatty, M.D.; SQSP Registered Nurse Bill Honey; and SQSP Chief 6 Medical Officer E. Tootell. The Clerk shall also mail a copy of the complaint and a copy of this 7 Order to the State Attorney General's Office in San Francisco. Additionally, the Clerk shall mail 8 a copy of this Order to Plaintiff. 9 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 10 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 11 Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on 12 behalf of Plaintiff, to waive service of the summons, fail to do so, Defendants will be required to Northern District of California United States District Court 13 bear the cost of such service unless good cause be shown for the failure to sign and return the 14 waiver form. If service is waived, this action will proceed as if Defendants had been served on the 15 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be 16 required to serve and file an answer before sixty (60) days from the date on which the request for 17 waiver was sent. (This allows a longer time to respond than would be required if formal service of 18 summons is necessary.) Defendants are asked to read the statement set forth at the foot of the 19 waiver form that more completely describes the duties of the parties with regard to waiver of 20 service of the summons. If service is waived after the date provided in the Notice but before 21 Defendants have been personally served, the Answer shall be due sixty (60) days from the date on 22 which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, 23 whichever is later. 24 4. Defendants shall answer the complaint in accordance with the Federal Rules of 25 Civil Procedure. The following briefing schedule shall govern dispositive motions in this action: 26 a. No later than sixty (60) days from the date their answer is due, Defendants 27 shall file a motion for summary judgment or other dispositive motion. The motion must be 28 supported by adequate factual documentation, must conform in all respects to Federal Rule of 3 1 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 2 the events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice 3 so that Plaintiff will have fair, timely and adequate notice of what is required of him in order to 4 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 5 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 6 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 7 However, the Court notes that under the new law of the circuit, in the rare event that a failure to 8 exhaust is clear on the face of the complaint, Defendants may move for dismissal under Rule 9 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. 10 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (overruling Wyatt v. Terhune, 315 F.3d 1108, 11 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under 12 the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a defendant as an Northern District of California United States District Court 13 unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on the face of the 14 complaint, Defendants must produce evidence proving failure to exhaust in a motion for summary 15 judgment under Rule 56. Id. If undisputed evidence viewed in the light most favorable to 16 Plaintiff shows a failure to exhaust, Defendants are entitled to summary judgment under Rule 56. 17 Id. But if material facts are disputed, summary judgment should be denied and the district judge 18 rather than a jury should determine the facts in a preliminary proceeding. Id. at 1168. 19 If Defendants are of the opinion that this case cannot be resolved by summary judgment, 20 Defendants shall so inform the Court prior to the date the summary judgment motion is due. All 21 papers filed with the Court shall be promptly served on Plaintiff. 22 b. Plaintiff's opposition to the dispositive motion shall be filed with the Court 23 and served on Defendants no later than twenty-eight (28) days after the date on which 24 Defendants' motion is filed. 25 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 26 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 27 28 1 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). 4 1 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 2 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 3 any fact that would affect the result of your case, the party who asked for summary judgment is 4 entitled to judgment as a matter of law, which will end your case. When a party you are suing 5 makes a motion for summary judgment that is properly supported by declarations (or other sworn 6 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 7 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 8 as provided in Rule 56(c), that contradicts the facts shown in the defendant's declarations and 9 documents and show that there is a genuine issue of material fact for trial. If you do not submit 10 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 11 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 12 F.3d at 962-63. Northern District of California United States District Court 13 Plaintiff also is advised that—in the rare event that Defendants argue that the failure to 14 exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available 15 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 16 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 17 exhaust your available administrative remedies before coming to federal court. Such evidence 18 may include: (1) declarations, which are statements signed under penalty of perjury by you or 19 others who have personal knowledge of relevant matters; (2) authenticated documents— 20 documents accompanied by a declaration showing where they came from and why they are 21 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 22 in your complaint insofar as they were made under penalty of perjury and they show that you have 23 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 24 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 25 motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed 26 issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168. 27 (The notices above do not excuse Defendants' obligation to serve similar notices again 28 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 5 1 motions for summary judgment. Woods, 684 F.3d at 935.) 2 d. Defendants shall file a reply brief no later than fourteen (14) days after the 3 date Plaintiff's opposition is filed. 4 e. The motion shall be deemed submitted as of the date the reply brief is due. 5 No hearing will be held on the motion unless the Court so orders at a later date. 6 5. Discovery may be taken in this action in accordance with the Federal Rules of Civil 7 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to 8 depose Plaintiff and any other necessary witnesses confined in prison. 9 6. All communications by Plaintiff with the Court must be served on Defendants or 10 Defendants' counsel, once counsel has been designated, by mailing a true copy of the document to 11 them. 12 7. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court Northern District of California United States District Court 13 informed of any change of address and must comply with the Court's orders in a timely fashion. 14 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 15 while an action is pending must promptly file a notice of change of address specifying the new 16 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 17 directed to the pro se party by the Court has been returned to the Court as not deliverable, and 18 (2) the Court fails to receive within sixty days of this return a written communication from the pro 19 se party indicating a current address. See L.R. 3-11(b). 20 8. Extensions of time are not favored, though reasonable extensions will be granted. 21 Any motion for an extension of time must be filed no later than fourteen (14) days prior to the 22 deadline sought to be extended. 23 IT IS SO ORDERED. 24 Dated: January 6, 2016 25 ______________________________________ YVONNE GONZALEZ ROGERS 26 United States District Judge 27 28 6