Bynum v. Sweet

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA JIM CARTER BYNUM, 11 Case No. 21-05833 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING v. DEFENDANTS TO FILE 13 DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 MARY SWEET, et al., MOTION; INSTRUCTIONS TO CLERK 15 Defendants.

18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against medical personnel at the Correctional Training Facility in Soledad (“CTF”) where he is currently incarcerated. Dkt. No. 1. The matter was reassigned to this Court after Plaintiff declined magistrate judge jurisdiction. Dkt. Nos. 4, 6. Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a separate order.

24 DISCUSSION A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 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. See West v. Atkins, 487 U.S. 42, 48 (1988).

9 B. Plaintiff’s Claims 10 Plaintiff claims that on or about January 31, 2020, he fell and injured his elbow while exiting the shower. Dkt. No. 1 at 5. Plaintiff claims Defendant Dr. Mary Karen Sweet acted with deliberate indifference in treating his injury, resulting in greater damage to the area. Id. at 11. Plaintiff claims Defendant Dr. Martin Laufik was negligent in misdiagnosing his injury, resulting in delayed treatment and irreparable damage. Id. at 12- 13. Based on the foregoing, Plaintiff states a cognizable § 1983 claim for deliberate indifference to serious medical needs against Defendant Sweet. See Estelle v. Gamble, 429 17 U.S. 97, 104 (1976). The Court will exercise supplemental jurisdiction over the negligence claim against Defendant Laufik. See United Mine Workers v. Gibbs, 33 U.S. 19 715 (1966).

21 CONCLUSION 22 For the reasons state above, the Court orders as follows: 23 1. The following defendant(s) shall be served at CTF: 24 a. Dr. Mary Karen Sweet 25 b. Dr. Martin Laufik 26 Service on the listed defendant(s) shall proceed under the California Department of prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve on CDCR via email the following documents: the operative complaint, and any attachments thereto, Dkt. No. 1, this order of service, a CDCR Report of E-Service Waiver form and a summons. The clerk also shall serve a copy of this order on the plaintiff.

5 No later than 40 days after service of this order via email on CDCR, CDCR shall provide the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) listed in this order will be waiving service of process without the need for service by the United States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the California Attorney General’s Office which, within 21 days, shall file with the court a waiver of service of process for the defendant(s) who are waiving service.

13 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each defendant who has not waived service according to the CDCR Report of E-Service Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies of this order, the summons and the operative complaint for service upon each defendant who has not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E-Service Waiver.

19 2. No later than ninety-one (91) days from the date this order is filed, Defendants shall file a motion for summary judgment or other dispositive motion with respect to the claims in the complaint found to be cognizable above.

22 a. 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 1 b. In the event Defendants file a motion for summary judgment, the Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012).

5 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court and served on Defendants no later than twenty-eight (28) days from the date Defendants’ motion is filed.

8 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that failure to file an opposition to Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to the granting of the motion, and granting of judgment against Plaintiff without a trial. See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 15 F.3d 651, 653 (9th Cir. 1994).

16 4. Defendants shall file a reply brief no later than fourteen (14) days after Plaintiff’s opposition is filed.

18 5. The motion shall be deemed submitted as of the date the reply brief is due.

19 No hearing will be held on the motion unless the Court so orders at a later date.

20 6. 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.

23 7. 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.

26 8. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the || timely fashion. Failure to do so may result in the dismissal of this action for failure to || prosecute pursuant to Federal Rule of Civil Procedure 41(b).

3 9. 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.

5 IT IS SO ORDERED.

6 || Dated: __December 1, 2021 heh Lys homme) BETH LABSON FREEMAN 7 United States District Judge 12 2B o

Oo Z 18 Order of Sve 25 PRO-SE\BLF\CR.21\05833Bynum_sve