Free Order on Motion to Appoint Counsel - District Court of California - California

Case 3:07-cv-04921-TEH

Document 9

Filed 06/13/2008

Page 1 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id., § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff, a prisoner of the State of California, currently incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 alleging that he has been denied adequate medical attention. Plaintiff has also filed a motion for appointment of counsel. (Docket no. 3.) DISCUSSION v. M. EVANS, et al., Defendants. ____________________________/ ROBERT WILLIAM WALTERS, No. C 07-04921 TEH (PR) Plaintiff, ORDER OF SERVICE; DENYING MOTION FOR APPOINTMENT OF COUNSEL (Docket No. 3) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case 3:07-cv-04921-TEH

Document 9

Filed 06/13/2008

Page 2 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 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. West v. Atkins, 487 U.S. 42, 48 (1988). B. Venue Plaintiff alleges events that occurred while he was previously incarcerated at Salinas Valley State Prison ("SVSP"), which lies within the venue of this judicial district, and at KVSP, where he is currently incarcerated, which lies within the venue of the Eastern District of California. Plaintiff has named numerous defendants, including those who reside within the venue of the Eastern District of California as well as those who reside in this district. Venue is proper in this district as many of the named defendants reside, and a substantial part of the events giving rise to the action occurred, in this district. 28 U.S.C. § 1391(b). Therefore, at this time, the Court retains jurisdiction over the action and all named defendants. C. Legal Claims Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). Liberally construed, plaintiff's allegations that defendants have denied him medical care for his injuries and pain state cognizable claims under Section 1983 for deliberate indifference to serious medical needs and accordingly will be served on the named Defendants other than Defendant Evans. See, e.g., Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). Defendant Evans is dismissed from this action, as Plaintiff fails to assert any allegations against him other than that his duties "may include . . . safety and welfare of inmates [and] oversight of medical personnel." A supervisor may be liable under Section 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d

Case 3:07-cv-04921-TEH

Document 9

Filed 06/13/2008

Page 3 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1435, 1446 (9th Cir. 1991) (en banc), cert. denied, 502 U.S. 1074 (1992). A supervisor therefore "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Absent such allegations, Defendant Evans is DISMISSED from this action. D. Plaintiff's Responsibility to Effectuate Service

The Court shall direct the United States Marshal to serve copies of the complaint on the remaining named defendants. Although incarcerated plaintiffs proceeding in forma pauperis may rely on service by the United States Marshal, "a plaintiff may not remain silent and do nothing to effectuate such service. At a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). If the marshal is unable to effectuate service through no fault of his own, for example, because the plaintiff failed to provide sufficient information or because the defendant is not where plaintiff claims, and plaintiff is informed, the plaintiff must seek to remedy the situation or face dismissal regarding that defendant pursuant to Federal Rule of Civil Procedure 4(m). See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.1990)), overruled on other grounds, Sandin v. Connor, 515 U.S. 472 (1995). Rule 4(m) provides as follows: If a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Fed. R. Civ. P. 4(m). Plaintiff has identified the following defendants as available for service at Salinas Valley State Prison: Dr. Charles Lee, Dr. Reynaldo Cordero, Dr. Helmar, Dr. R. Nanduri, Dr. Robert Bowman, Dr. Rachel Tortolini, Dr. Navneet Adya, Dr.

Case 3:07-cv-04921-TEH

Document 9

Filed 06/13/2008

Page 4 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Randolph Gibbs, Lovesia Bey, C. Cuykendal, J. Armstrong, C. Backlin, L. Castro, C. Moss, A. Carroll, Registered Nurse Moore, and Medical Technical Assistants Johnson and Garcia. Plaintiff has identified the following defendants at Kern Valley State Prison: Dr. Ismail Patel, Dr. Marta Spaeth, Dr. Ashref Youseff, and Lynn Rumsey. E. Motion for Appointment of Counsel Plaintiff has filed a motion for appointment of counsel. (Docket no. 3.) There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Having reviewed the complaint, the Court determines that Plaintiff has articulated his claims sufficiently in light of the complexity of the issues involved, and concludes that appointment of counsel is not necessary at this time. The motion for appointment of counsel is therefore denied without prejudice. Plaintiff also sent a letter to the Court asking for information about the ECF registration information handout he had received (docket no. 4). Plaintiff is not required to register for Electronic Case Filing. As an incarcerated and unrepresented litigant, he may continue to file his documents in paper form and will receive documents from the Court on paper rather than electronically. CONCLUSION For the foregoing reasons and for good cause shown, 1. Plaintiff's motion for appointment of counsel (Docket No. 3) is DENIED without prejudice. 2. 3. All claims against Defendant Evans are DISMISSED from this action. The Clerk shall issue summons and the United States Marshal shall serve, without prepayment of fees, copies of the complaint in this matter, all attachments thereto, and copies of this order on the remaining defendants at the Salinas Valley State Prison and Kern Valley State Prison. The clerk shall also mail courtesy copies of the complaint and

Case 3:07-cv-04921-TEH

Document 9

Filed 06/13/2008

Page 5 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1

this order to the California Attorney General's Office. The Clerk also shall serve a copy of this order on Plaintiff. 4. No later than ninety (90) days from the date of this order, Defendants shall file a motion for summary judgment or other dispositive motion with respect to the claims found to be cognizable above. a. If Defendants elect to file a motion to dismiss on the grounds

Plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), Defendants shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.), cert. denied, 540 U.S. 810 (2003). b. 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 resolved by summary judgment, he shall so inform the Court prior to the date the summary judgment motion is due. 5. Plaintiff's opposition to the dispositive motion shall be filed with the

Court and served on Defendants no later than thirty (30) days from the date Defendants' motion is filed. a. In the event Defendants file an unenumerated motion to dismiss

under Rule 12(b), Plaintiff is hereby cautioned as follows:1 The defendants have made a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, on the ground you have not exhausted your administrative remedies. The motion will, if granted, result in the dismissal of your case. When a party you are suing makes a motion to dismiss for failure to exhaust, and that motion is properly The following notice is adapted from the summary judgment notice to be given to pro se prisoners as set forth in Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999). See Wyatt, 315 F.3d at 1120 n.14.

Case 3:07-cv-04921-TEH

Document 9

Filed 06/13/2008

Page 6 of 7

1 2 3 4 5

supported by declarations (or other sworn testimony) and/or documents, you may not simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or documents, that contradict the facts shown in the defendant's declarations and documents and show that you have in fact exhausted your claims. If you do not submit your own evidence in opposition, the motion to dismiss, if appropriate, may be granted and the case dismissed. b. In the event defendants file a motion for summary judgment, the

6 Ninth Circuit has held that the following notice should be given to 7 plaintiffs: 8 9 10 11 12 13 14 15 16 17 18 19 See Rand, 154 F.3d at 963. Plaintiff is advised to read Rule 56 of the Federal 20 Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 21 (party opposing summary judgment must come forward with evidence 22 showing triable issues of material fact on every essential element of his claim). 23 Plaintiff is cautioned that failure to file an opposition to Defendants' motion 24 for summary judgment may be deemed to be a consent by Plaintiff to granting 25 the motion, and granting of judgment against Plaintiff without a trial. See 26 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.) (per curiam), cert. denied, 516 27 U.S. 838 (1995); Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994). 28 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 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 defendants' 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 in favor of defendants, your case will be dismissed and there will be no trial.

Case 3:07-cv-04921-TEH

Document 9

Filed 06/13/2008

Page 7 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED:

6.

Defendants shall file a reply brief no later than fifteen (15) days after

Plaintiff's opposition is filed. 7. 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. 8. All communications by the Plaintiff with the Court must be served on

Defendants, or Defendants' counsel once counsel has been designated, by mailing a true copy of the document to Defendants or Defendants' counsel. 9. 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. 10. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep

the Court and all parties informed of any change of address by filing a separate document titled "Notice of 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 under Federal Rule of Civil Procedure 41(b). 11. Extensions of time must be filed no later than the deadline sought to be

extended and must be accompanied by a showing of good cause. SO ORDERED.

06/13/08 THELTON E. HENDERSON United States District Judge