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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

KEITH W. CHAPPELL, JR., 

Plaintiff(s),

 v.

NANCY ORCUTT, N.P., et al.,

Defendant(s). 

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No. C 09-2825 CRB (PR)

ORDER OF SERVICE

Plaintiff, a prisoner at the San Francisco County Jail ("SFCJ"), has filed a

pro se First Amended Complaint (FAC) under 42 U.S.C. § 1983 alleging

inadequate medical care for his lower back condition. 

DISCUSSION

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 Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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 1Although pretrial detainees' claims arise under the Due Process Clause,

the Eighth Amendment serves as a benchmark for evaluating those claims. See

Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (8th Amendment guarantees

provide minimum standard of care for pretrial detainees)

2

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. West v. Atkins, 487 U.S. 42, 48

(1988).

B. Legal Claims

Plaintiff alleges that nurse practioners Nancy Orcutt and John Poh, and

medical supervisor Terry Ellinburge, were deliberately indifferent to his serious

medical needs when they failed to recommend further medical assistance and

treatment for his serious lower back condition. According to plaintiff, he

complained to no avail that the prescribed narcotics were not working because he

was in excruciating pain and collapsing due to his lower back "malfunctioning." 

Deliberate indifference to serious medical needs violates the Eighth

Amendment's proscription against cruel and unusual punishment. Estelle v.

Gamble, 429 U.S. 97, 104 (1976).1 A prison official is deliberately indifferent if

he knows that a prisoner faces a substantial risk of serious harm and disregards

that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511

U.S. 825, 837 (1994). Liberally construed, plaintiff's allegations appear to state a

cognizable § 1983 claim for deliberate indifference to serious medical needs and

will be served on the three named defendants.

CONCLUSION

For the foregoing reasons and for good cause shown,

1. The clerk shall issue summons and the United States Marshal shall

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serve, without prepayment of fees, copies of the FAC in this matter, all

attachments thereto, and copies of this order on nurse practitioners Nancy Orcutt

and John Poh, and medical supervisor Terry Ellinburge, at Jail Health Services

650 Fifth Street, Suite 309, San Francisco, CA 94107 (Attn: Dr. Joseph Goldenson). 

The clerk also shall serve a copy of this order on plaintiff. 

2. In order to expedite the resolution of this case, the court orders as

follows:

a. No later than 90 days from the date of this order, defendants

shall file a motion for summary judgment or other dispositive motion. A motion

for summary judgment shall be supported by adequate factual documentation and

shall conform in all respects to Federal Rule of Civil Procedure 56, and shall

include as exhibits all records and incident reports stemming from the events at

issue. If defendants are of the opinion that this case cannot be resolved by

summary judgment or other dispositive motion, they shall so inform the court

prior to the date their motion is due. All papers filed with the court shall be

served promptly on plaintiff.

b. Plaintiff's opposition to the dispositive motion shall be filed

with the court and served upon defendants no later than 30 days after defendants

serve plaintiff with the motion. 

c. Plaintiff is advised that 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. 

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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 contradicts 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 submit your own evidence in opposition, summary

judgment, if appropriate, may be entered against you. If summary judgment is

granted, your case will be dismissed and there will be no trial. Rand v. Rowland,

154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App A).

Plaintiff is also advised that a motion to dismiss for failure to exhaust

administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your

case, albeit without prejudice. You must “develop a record” and present it in

your opposition in order to dispute any “factual record” presented by the

defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1120

n.14 (9th Cir. 2003).

d. Defendants shall file a reply brief within 15 days of the date

on which plaintiff serves them with the opposition. 

e. 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. 

3. Discovery may be taken in accordance with the Federal Rules of

Civil Procedure. No further court order is required before the parties may

conduct discovery.

4. All communications by plaintiff with the court must be served on

defendants, or defendants' counsel once counsel has been designated, by mailing

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a true copy of the document to defendants or defendants' counsel.

5. It is plaintiff's responsibility to prosecute this case. Plaintiff must

keep the court and all parties informed of any 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 pursuant to Federal Rule of Civil Procedure 41(b).

SO ORDERED.

DATED: July 2, 2010 

CHARLES R. BREYER

United States District Judge

G:\PRO-SE\CRB\CR.09\Chappel, K1.service.wpd

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