Dao v. Gibbs

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 CUONG HUY DAO, 11 Case No. 23-cv-05756 EJD (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING v. DEFENDANTS TO FILE 13 DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 C. VANHORN, et al., MOTION; INSTRUCTIONS TO CLERK 15 Defendants. 16 17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against medical staff at Pelican Bay State Prison (“SVSP”) where he was 20 previously housed. Dkt. No. 1. Plaintiff’s motion for leave to proceed in forma pauperis 21 will be addressed in a separate order. Dkt. No. 2. 22 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff claims Defendants C. Vanhorn (psychiatric technician), A. Gibbs 10 (psychiatric technician), Nurse E. Aumine, and Nurse E. Hassman violated his Eighth 11 Amendment right against cruel and unusual punishment in the post-surgical treatment they 12 each provided for his eyes. Dkt. No. 1 at 4-15. Plaintiff claims he experienced further 13 injury to his eyes and unnecessary pain due to their actions. Id. Plaintiff seeks damages, 14 including punitive. Id. at 3. Liberally construed, Plaintiff’s allegations are sufficient to 15 state a claim for deliberate indifference to serious medical needs. See Estelle v. Gamble, 16 429 U.S. 97, 104 (1976). 17 18 CONCLUSION 19 For the reasons set forth above, the Court orders as follows: 20 1. The following defendant at PBSP shall be served: 21 a. C. Vanhorn, Psychiatric Technician 22 b. A. Gibbs, Psychiatric Technician 23 c. E. Aumine, Registered Nurse 24 d. E. Hassman, Registered Nurse 25 Service on the listed defendant(s) shall proceed under the California Department of 26 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 1 on CDCR via email the following documents: the operative complaint and any attachments 2 thereto, (Dkt. No. 1), this order of service, a CDCR Report of E-Service Waiver form and 3 a summons. The clerk also shall serve a copy of this order on the plaintiff. 4 No later than 40 days after service of this order via email on CDCR, CDCR shall 5 provide the court a completed CDCR Report of E-Service Waiver advising the court which 6 defendant(s) listed in this order will be waiving service of process without the need for 7 service by the United States Marshal Service (USMS) and which defendant(s) decline to 8 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 9 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 10 days, shall file with the court a waiver of service of process for the defendant(s) who are 11 waiving service. 12 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 13 each defendant who has not waived service according to the CDCR Report of E-Service 14 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 15 forms and copies of this order, the summons and the operative complaint for service upon 16 each defendant who has not waived service. The clerk also shall provide to the USMS a 17 copy of the CDCR Report of E-Service Waiver. 18 2. No later than ninety-one (91) days from the date this order is filed, 19 Defendants shall file a motion for summary judgment or other dispositive motion with 20 respect to the claims in the complaint found to be cognizable above. 21 a. Any motion for summary judgment shall be supported by adequate 22 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 23 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 24 qualified immunity found, if material facts are in dispute. If any Defendant is of the 25 opinion that this case cannot be resolved by summary judgment, he shall so inform the 26 Court prior to the date the summary judgment motion is due. 1 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 2 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 3 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 4 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 5 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 6 motion is filed. 7 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 8 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 9 must come forward with evidence showing triable issues of material fact on every essential 10 element of his claim). Plaintiff is cautioned that failure to file an opposition to 11 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 12 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 13 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 14 F.3d 651, 653 (9th Cir. 1994). 15 4. Defendants shall file a reply brief no later than fourteen (14) days after 16 Plaintiff’s opposition is filed. 17 5. The motion shall be deemed submitted as of the date the reply brief is due. 18 No hearing will be held on the motion unless the Court so orders at a later date. 19 6. All communications by the Plaintiff with the Court must be served on 20 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 21 copy of the document to Defendants or Defendants’ counsel. 22 7. Discovery may be taken in accordance with the Federal Rules of Civil 23 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 24 Rule 16-1 is required before the parties may conduct discovery. 25 8. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 26 court informed of any change of address and must comply with the court’s orders in a 1 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 2 9, Extensions of time must be filed no later than the deadline sought to be 3 || extended and must be accompanied by a showing of good cause. 4 IT IS SO ORDERED. 5 || Dated: March 12, 2024 EDWARD J. DAVILA 6 United States District Judge 7 8 9 10 1] a 12 «14 © 15 16 Z 18 19 20 21 22 23 24 25 26 27