1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ZANE M. HUBBARD, Case No. 19-cv-07508-JST
8 Plaintiff, ORDER OF SERVICE v. 9
10 GLORIA RAMOS, Defendant. 11
12 13 INTRODUCTION 14 Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”), filed this pro se civil rights 15 action pursuant to 42 U.S.C. § 1983 against SVSP psychiatrist Gloria Ramos. His complaint is 16 now before the Court for review under 28 U.S.C. § 1915A. He has been granted leave to proceed 17 in forma pauperis in a separate order. 18 DISCUSSION 19 A. Standard of Review 20 A federal court must engage in a preliminary screening of any case in which a prisoner 21 seeks redress from a governmental entity, or from an officer or an employee of a governmental 22 entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and 23 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be 24 granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 25 § 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 26 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 27 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 1 necessary; the statement need only ‘give the defendant fair notice of what the . . . . claim is and the 2 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 3 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 4 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 5 do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 7 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 9 right secured by the Constitution or laws of the United States was violated; and (2) that the 10 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 11 42, 48 (1988). 12 B. Complaint 13 The complaint makes the following allegations. Since 2013, plaintiff has been forced to 14 undergo aversive therapy. Because the process is so intense, if plaintiff is placed in an 15 incompatible situation, it can cause him to assault someone. When transferred to SVSP, plaintiff 16 preemptively requested that his interactions with other SVSP inmates be restricted, but the request 17 was denied. Plaintiff was housed in an incompatible environment, which resulted in him 18 assaulting inmate Zuniga. On October 15, 2019, defendant Ramos ordered that plaintiff be 19 medicated against his will. Defendant Ramos did not try to figure out whether there was actually 20 something wrong with plaintiff’s way of thinking. The medication causes plaintiff to suffer side 21 effects, including severe muscle cramps, muscle spasms, contorted body movements, and a lack of 22 energy. ECF No. 1 at 4-6. Liberally construed, the complaint states a cognizable due process 23 claim against defendant Ramos. Washington v. Harper, 494 U.S. 210, 221-22 (1990) (inmate has 24 significant liberty interest in avoiding unwanted administration of medication under the Due 25 Process Clause); see also United States v. Loughner, 672 F.3d 731, 744 (9th Cir. 2012) (same). 26 CONCLUSION 27 For the foregoing reasons, the Court orders as follows. 1 medicating plaintiff without his consent. 2 2. The Clerk shall issue summons and the United States Marshal shall serve, without 3 prepayment of fees, a copy of the complaint with all attachments thereto (Dkt. No. 1), and a copy 4 of this order upon defendant Dr. Gloria Ramos at Salinas Valley State Prison, 31625 Highway 5 101, Soledad, CA 93960. A courtesy copy of the complaint with attachments and this order shall 6 also be mailed to the California Attorney General’s Office. 7 3. In order to expedite the resolution of this case, the Court orders as follows: 8 a. No later than 91 days from the date this Order is filed, defendant must file 9 and serve a motion for summary judgment or other dispositive motion, or a motion to stay as 10 indicated above. If defendant is of the opinion that this case cannot be resolved by summary 11 judgment, defendant must so inform the Court prior to the date the motion is due. A motion for 12 summary judgment also must be accompanied by a Rand notice so that plaintiff will have fair, 13 timely, and adequate notice of what is required of him in order to oppose the motion. Woods v. 14 Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 15 F.3d 952 (9th Cir. 1998), must be served concurrently with motion for summary judgment). A 16 motion to dismiss for failure to exhaust available administrative remedies similarly must be 17 accompanied by a Wyatt notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012). 18 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 19 must be filed with the Court and served upon defendant no later than 28 days from the date the 20 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 21 provided later in this order as he prepares his opposition to any motion for summary judgment. 22 Plaintiff also must bear in mind the notice and warning regarding motions to dismiss for non- 23 exhaustion provided later in this order as he prepares his opposition to any motion to dismiss. 24 c. Defendant shall file a reply brief no later than 14 days after the date the 25 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 26 hearing will be held on the motion. 27 4. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 1 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 2 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.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ZANE M. HUBBARD, Case No. 19-cv-07508-JST
8 Plaintiff, ORDER OF SERVICE v. 9
10 GLORIA RAMOS, Defendant. 11
12 13 INTRODUCTION 14 Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”), filed this pro se civil rights 15 action pursuant to 42 U.S.C. § 1983 against SVSP psychiatrist Gloria Ramos. His complaint is 16 now before the Court for review under 28 U.S.C. § 1915A. He has been granted leave to proceed 17 in forma pauperis in a separate order. 18 DISCUSSION 19 A. Standard of Review 20 A federal court must engage in a preliminary screening of any case in which a prisoner 21 seeks redress from a governmental entity, or from an officer or an employee of a governmental 22 entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and 23 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be 24 granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 25 § 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 26 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 27 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 1 necessary; the statement need only ‘give the defendant fair notice of what the . . . . claim is and the 2 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 3 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 4 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 5 do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 7 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 9 right secured by the Constitution or laws of the United States was violated; and (2) that the 10 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 11 42, 48 (1988). 12 B. Complaint 13 The complaint makes the following allegations. Since 2013, plaintiff has been forced to 14 undergo aversive therapy. Because the process is so intense, if plaintiff is placed in an 15 incompatible situation, it can cause him to assault someone. When transferred to SVSP, plaintiff 16 preemptively requested that his interactions with other SVSP inmates be restricted, but the request 17 was denied. Plaintiff was housed in an incompatible environment, which resulted in him 18 assaulting inmate Zuniga. On October 15, 2019, defendant Ramos ordered that plaintiff be 19 medicated against his will. Defendant Ramos did not try to figure out whether there was actually 20 something wrong with plaintiff’s way of thinking. The medication causes plaintiff to suffer side 21 effects, including severe muscle cramps, muscle spasms, contorted body movements, and a lack of 22 energy. ECF No. 1 at 4-6. Liberally construed, the complaint states a cognizable due process 23 claim against defendant Ramos. Washington v. Harper, 494 U.S. 210, 221-22 (1990) (inmate has 24 significant liberty interest in avoiding unwanted administration of medication under the Due 25 Process Clause); see also United States v. Loughner, 672 F.3d 731, 744 (9th Cir. 2012) (same). 26 CONCLUSION 27 For the foregoing reasons, the Court orders as follows. 1 medicating plaintiff without his consent. 2 2. The Clerk shall issue summons and the United States Marshal shall serve, without 3 prepayment of fees, a copy of the complaint with all attachments thereto (Dkt. No. 1), and a copy 4 of this order upon defendant Dr. Gloria Ramos at Salinas Valley State Prison, 31625 Highway 5 101, Soledad, CA 93960. A courtesy copy of the complaint with attachments and this order shall 6 also be mailed to the California Attorney General’s Office. 7 3. In order to expedite the resolution of this case, the Court orders as follows: 8 a. No later than 91 days from the date this Order is filed, defendant must file 9 and serve a motion for summary judgment or other dispositive motion, or a motion to stay as 10 indicated above. If defendant is of the opinion that this case cannot be resolved by summary 11 judgment, defendant must so inform the Court prior to the date the motion is due. A motion for 12 summary judgment also must be accompanied by a Rand notice so that plaintiff will have fair, 13 timely, and adequate notice of what is required of him in order to oppose the motion. Woods v. 14 Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 15 F.3d 952 (9th Cir. 1998), must be served concurrently with motion for summary judgment). A 16 motion to dismiss for failure to exhaust available administrative remedies similarly must be 17 accompanied by a Wyatt notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012). 18 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 19 must be filed with the Court and served upon defendant no later than 28 days from the date the 20 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 21 provided later in this order as he prepares his opposition to any motion for summary judgment. 22 Plaintiff also must bear in mind the notice and warning regarding motions to dismiss for non- 23 exhaustion provided later in this order as he prepares his opposition to any motion to dismiss. 24 c. Defendant shall file a reply brief no later than 14 days after the date the 25 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 26 hearing will be held on the motion. 27 4. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 1 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 2 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 contradict 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 v. 12 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). 13 Plaintiff also is advised that a motion to dismiss for failure to exhaust available 14 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 15 prejudice. You must “develop a record” and present it in your opposition in order to dispute any 16 “factual record” presented by defendant in his motion to dismiss. Wyatt v. Terhune, 315 F.3d 17 1108, 1120 n.14 (9th Cir. 2003). 18 (The Rand and Wyatt notices above do not excuse defendant’s obligation to serve said 19 notices again concurrently with motions to dismiss for failure to exhaust available administrative 20 remedies and motions for summary judgment. Woods, 684 F.3d at 939). 21 5. All communications by plaintiff with the Court must be served on defendant’s 22 counsel by mailing a true copy of the document to defendant’s counsel. The Court may disregard 23 any document which a party files but fails to send a copy of to his opponent. Until defendant’s 24 counsel has been designated, plaintiff may mail a true copy of the document directly to defendant, 25 but once defendant is represented by counsel, all documents must be mailed to counsel rather than 26 directly to defendant. 27 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 1 before the parties may conduct discovery. 2 7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 3 Court informed of any change of address and must comply with the Court’s orders in a timely 4 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 5 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 6 || pending case every time he is moved to a new facility. 7 8. Any motion for an extension of time must be filed no later than the deadline sought 8 to be extended and must be accompanied by a showing of good cause. 9 9. Plaintiff is cautioned that he must include the case name and case number for this 10 || case on any document he submits to the Court for consideration in this case. 11 IT IS SO ORDERED. 12 Dated: December 24, 2019 . .
JON S. TIGAR' 14 nited States District Judge
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