Frederickson v. Wong et al

Northern District of California, cand-4:2015-cv-02488

ORDER OF SERVICE Habeas Answer or Dispositive Motion due by 10/6/2015. Signed by Magistrate 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 DANIEL CARL FREDERICKSON, 7 Case No. 15-cv-02488-KAW Plaintiff, 8 ORDER OF SERVICE v. 9 LEE WONG, et al., 10 Defendants. 11 12 Northern District of California United States District Court 13 Plaintiff Daniel Carl Frederickson, a state prisoner incarcerated at the San Quentin State 14 Prison ("SQSP"), 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. Lee Wong, Dr. Courtney Corrado, Dr. Sheila Dickson, 16 Dr. Roderick Ponath and Correctional Counselor Art Maneja. Plaintiff has consented to the 17 jurisdiction of the undersigned United States Magistrate Judge over this action. Plaintiff has filed 18 a motion for leave to proceed in forma pauperis ("IFP"), which is granted in a separate order. The 19 Court now addresses the claims asserted in Plaintiff's complaint. 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 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 3 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 Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the 6 plaintiff can show that the defendant's actions both actually and proximately caused the 7 deprivation of a federally protected right. Lemire v. Caifornia Dep't of Corrections & 8 Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 9 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives 10 another of a constitutional right within the meaning of § 1983 if he does an affirmative act, 11 participates in another's affirmative act or omits to perform an act which he is legally required to 12 do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. Northern District of California United States District Court 13 II. Plaintiff's Claims 14 The following is a summary of the allegations in Plaintiff's complaint. On October 9, 15 2014, Dr. Wong convened a hearing attended by all Defendants to involuntarily place Plaintiff into 16 San Quentin's Psychiatric Inpatient Program ("PIP"). As soon as all Defendants were assembled, 17 Dr. Corrado ordered a Correctional Officer to escort Plaintiff from the meeting room. Forty-five 18 minutes later, Plaintiff was allowed into the room. Dr. Wong denied Plaintiff's requests to read a 19 prepared statement and to call witnesses in his defense. As a result of Defendants' decision at this 20 meeting, Plaintiff was transferred from grade "A" status into the PIP where he was denied all 21 property and privileges. On the basis of these allegations, Plaintiff asserts that he has been 22 deprived of his liberty and property without due process of law. 23 Liberally construed, the allegations appear to state a cognizable Fourteenth Amendment 24 procedural due process claim. 25 CONCLUSION 26 For the foregoing reasons, the Court orders as follows: 27 1. Plaintiff states a cognizable Fourteenth Amendment claim for violation of his procedural 28 due process rights against all Defendants. 2 1 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 2 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 3 (docket no. 1) and all attachments thereto, a copy of this Order and a copy of the form "Consent or 4 Declination to Magistrate Judge Jurisdiction" to SQSP Defendants Lee Wong, Courtney Corrado, 5 Sheila Dickson, Roderick Ponath and Art Maneja. This form can also be found at 6 The Clerk shall also mail a copy of the complaint and a copy 7 of this Order to the State Attorney General's Office in San Francisco, and a copy of this Order to 8 Plaintiff. 9 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure require 10 them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant 11 to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of 12 Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of Northern District of California United States District Court 13 such service unless good cause be shown for their failure to sign and return the waiver forms. If 14 service is waived, this action will proceed as if Defendants had been served on the date that the 15 waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve 16 and file an answer before sixty days from the date on which the request for waiver was sent. (This 17 allows a longer time to respond than would be required if formal service of summons is 18 necessary.) 19 Defendants are advised to read the statement set forth at the foot of the waiver form that 20 more completely describes the duties of the parties with regard to waiver of service of the 21 summons. If service is waived after the date provided in the Notice but before Defendants have 22 been personally served, the answer shall be due sixty days from the date on which the request for 23 waiver was sent or twenty days from the date the waiver form is filed, whichever is later. 24 4. Defendants shall file their Consent or Declination to Magistrate Judge Jurisdiction on or 25 before the date their answer is due. 26 5. The following briefing schedule shall govern dispositive motions in this action: 27 a. No later than thirty days from the date his answer is due, Defendants shall file a 28 motion for summary judgment or other dispositive motion. If Defendants file a motion for 3 1 summary judgment, it shall be supported by adequate factual documentation and shall conform in 2 all respects to Federal Rule of Civil Procedure 56. If Defendants are of the opinion that this case 3 cannot be resolved by summary judgment, they shall so inform the Court prior to the date the 4 summary judgment motion is due. All papers filed with the Court shall be promptly served on 5 Plaintiff. 6 At the time of filing the motion for summary judgment or other dispositive motion, 7 Defendants shall comply with the Ninth Circuit's decision in Woods v. Carey, 684 F.3d 934 (9th 8 Cir. 2012), and provide Plaintiff with notice of what is required of him to oppose a summary 9 judgment motion. 10 b. Plaintiff's opposition to the motion for summary judgment or other dispositive 11 motion shall be filed with the Court and served on Defendants no later than twenty-eight days after 12 the date on which Defendants' motion is filed. The Ninth Circuit has held that the following notice Northern District of California United States District Court 13 should be given to pro se plaintiffs facing a summary judgment motion: 14 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 15 of Civil Procedure will, if granted, end your case. 16 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 17 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 18 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 19 judgment that is properly supported by declarations (or other sworn testimony), you cannot 20 simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as 21 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 22 submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted [in favor of the defendants], your 23 case will be dismissed and there will be no trial. 24 Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). 25 Before filing his opposition, Plaintiff is advised to read the notice that will be provided to 26 him by Defendants when the motion is filed, and Rule 56 of the Federal Rules of Civil Procedure 27 and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come 28 forward with evidence showing triable issues of material fact on every essential element of his 4 1 claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this 2 case, he must be prepared to produce evidence in support of those allegations when he files his 3 opposition to Defendants' summary judgment motion. Such evidence may include sworn 4 declarations from himself and other witnesses to the incident, and copies of documents 5 authenticated by sworn declaration. Plaintiff will not be able to avoid summary judgment simply 6 by repeating the allegations of his complaint. 7 c. Defendants shall file a reply brief no later than fourteen days after the date 8 Plaintiff's opposition is filed. 9 d. The motion shall be deemed submitted as of the date the reply brief is due. No 10 hearing will be held on the motion unless the Court so orders at a later date. 11 6. Discovery may be taken in this action in accordance with the Federal Rules of Civil 12 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to Northern District of California United States District Court 13 depose Plaintiff and any other necessary witnesses confined in prison. 14 7. All communications by Plaintiff with the Court must be served on Defendants, or 15 Defendants' counsel once counsel has been designated, by mailing a true copy of the document to 16 Defendants or their counsel. 17 8. It is Plaintiff's responsibility to prosecute this case. He must keep the Court informed 18 of any change of address and must comply with the Court's orders in a timely fashion. 19 9. Extensions of time are not favored, though reasonable extensions will be granted. Any 20 motion for an extension of time must be filed no later than fourteen days prior to the deadline 21 sought to be extended. 22 IT IS SO ORDERED. 23 Dated: August 7, 2015 24 ______________________________________ KANDIS A. WESTMORE 25 United States Magistrate Judge 26 27 28 5