El-Shaddai v. Woodford et al

Filing 21

ORDER DIRECTING USM to serve process on Woodford and Runnels by District Judge Edward F. Shea on 1/29/09 ORDERING that the clerk is directed to forward plaintiff's instructions for service, the completed summons, copies of the complaint and this order to the USM. The clerk is directed to serve plaintiff with Local Rules. (cc USM Priority)(Becknal, R)

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 v. JEANNE WOODFORD, Director, California Department of Corrections, and D.L. RUNNELS, Warden, High Desert State Prison, Defendants. Before the Court is pro se state prisoner Plaintiff Adonai ElShaddai's Amended Complaint, alleging various constitutional violations under 42 U.S.C. § 1983. that Plaintiff's (Ct. Rec. 18.) states The Court previously determined First and Fourteenth ADONAI EL-SHADDAI, Plaintiff, NO. CV-08-2429-EFS (PC) ORDER DIRECTING U.S. MARSHAL TO SERVE COMPLAINT AND PROVIDING PLAINTIFF WITH ADVISEMENTS UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

Complaint

plausible

Amendment claims under 42 U.S.C. § 1983 and ordered Plaintiff to prepare and return the necessary service documents within forty-five (45) days. (Ct. Rec. 19.) Plaintiff has done so. (Ct. Rec. 20.)

Accordingly, IT IS HEREBY ORDERED: 1. The Clerk of Court shall forward the following documents to the

U.S. Marshals Service for each Defendant: a. b. ORDER * 1 One completed and issued summons; One completed USM-285 form;

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c. d. e. f.

One copy of the complaint; One copy of this Order; Two copies of a Waiver of Service; One notice of lawsuit consistent with Federal Rule of Civil Procedure 4(d)(1); and

g.

One request for waiver of service consistent with Federal Rule of Civil Procedure 4(d)(1).

The Clerk of Court shall also immediately forward the following

additional documents to the U.S. Marshals Service: a. b. The an extra copy of the complaint; and an extra copy of this Order. U.S. Marshals Service shall serve each Defendant in

compliance with Federal Rule of Civil Procedure 4. a. First, in order to effectuate service, the United States Marshal, in compliance with Rule 4(d), shall send the following documents, by first class mail: the summons, the complaint, this Order, a request for waiver of

service of summons, two copies of the Waiver of Service, and a return envelope, postage prepaid, addressed to the sender. The costs of mailing shall be advanced by the

United States. b. Next, if a Defendant does not return the Waiver of Service within the appropriate time period, the U.S. Marshals Service shall personally serve that Defendant, in compliance with Rule 4(e)-(i). The U.S. Marshals

Service shall make the necessary attempts to effectuate

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such personal service until service is effected or, if necessary, obtain direction from the Court or the Legal Affairs Division (Litigation Office Special Investigator) of the California Department of Corrections and

Rehabilitation (CDCR).

The U.S. Marshals Service shall

also command all necessary assistance from the California Department of Corrections and Rehabilitation (CDCR) to execute this Order. The U.S. Marshals Service shall file upon receipt the returned

waivers of service, the requests for waiver of service that are returned as undelivered, and returns of service. In addition, if necessary, the Costs

U.S. Marshals Service shall complete and file the USM-285 form.

of service will then be taxed against the personally-served Defendant in accordance with Federal Rule of Civil Procedure 4(d)(2). 5. Defendants shall file an answer or otherwise respond to

Plaintiff's complaint within sixty (60) days after mailing (if formal service is waived), forty-five (45) days if service is not waived. Failure to so respond may result in entry of a default judgment. 6. NOTICE - WARNING: Pro se Plaintiff is warned that certain

motions can result in the dismissal of all or part of his case; i.e., "dispositive motions." See Klingele v. Eikenberry, 849 F.2d 409, 411

(9th Cir. 1988); Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998). Such dispositive motions may be captioned as motions to dismiss or motions for summary judgment, though other captions may also be used. Generally, the Court must grant a Defendant's motion to dismiss for failure to state a claim that is filed under Federal Rule of Civil

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Procedure 12(b)(6) if it appears beyond doubt that Plaintiff can prove no set of facts that would plausibly entitle him to relief. While the

Court assumes that Plaintiff's allegations are true when applying this standard, conclusory allegations, without more, are insufficient to defeat a motion to dismiss for failure to state a claim. A Defendant may also file a motion to dismiss for failure to exhaust administrative remedies as to one or more claims in the complaint. The

failure to exhaust administrative remedies is subject to an unenumerated Rule 12(b) motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (citing Riza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988)). "In deciding a motion to dismiss for

failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Ritza, 837 F.2d at 368). setting forth specific Id. at 1119-20 (quoting

Accordingly, Plaintiff must oppose the motion facts in declaration(s) and other evidence

regarding the exhaustion of administrative remedies, rather than simply rely on allegations in the complaint. 837 F.2d at 369. See FED. R. CIV. P. 43(e); Ritza,

If the Court concludes that Plaintiff did not exhaust

administrative remedies, the case will be dismissed without prejudice. Wyatt, 837 F.3d at 1120. This means that the case will end. If

Plaintiff exhausts administrative remedies at a later date, he may file the case as a new action. The Court must grant a summary judgment motion filed under Federal Rule of Civil Procedure 56 when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. This means the Court will find in favor of the moving party if there is

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no real dispute about any fact that affects the result of the case and if the moving party is entitled to judgment as a matter of law. will end the case. This

When a party makes a motion for summary judgment that

is properly supported by declarations or other sworn testimony, the opposing party cannot simply rely on what his complaint or answer says. Instead, if Plaintiff is the opposing party, he must show Defendant(s)' facts are genuinely disputed in one or more of the following ways: (1) Plaintiff may rely upon statements made under penalty of perjury in the complaint if the complaint shows that Plaintiff has personal knowledge of the matters stated and if Plaintiff calls the Court's attention to those parts of the complaint upon which Plaintiff relies; (2) Plaintiff may serve and file affidavits or declarations setting forth the facts which Plaintiff believes prove Plaintiff's claims (the persons who sign the affidavit or declaration must have personal knowledge of the facts stated); (3) Plaintiff may rely upon written records but Plaintiff must prove that the records are what Plaintiff claims they are; and (4) Plaintiff may also rely upon all or any part of the transcript of one or more depositions, answers to interrogatories, or admissions obtained in this proceeding. Should Plaintiff fail to contradict Defendants' motion

with affidavits, declarations, or other evidence, Defendants' evidence will be taken as truth, and final judgment may be entered without a full trial. See FED. R. CIV. P. 56(e). Rule 56 sets forth what a party must Local Rule 56-260 also

do in order to oppose a summary judgment motion.

requires, in addition, that a party include as part of its opposition to a summary judgment motion a statement of material facts. If summary

judgment is granted, the case will be dismissed and there will be no trial. ORDER * 5

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7.

NOTICE - WARNING: Plaintiff is also advised that all parties,

whether or not represented by an attorney, are responsible for following the requirements set forth in the Federal Rules of Civil Procedure and the Local Rules. Failure to comply with these rules or an Order may

result in the imposition of sanctions, including dismissal of the action. Please take special note of Local Rule 5-135 regarding service and filing of pleadings, Local Rule 78-230 regarding motion practice, especially subsections (f) through (h), and Local Rule 56-260 regarding summary judgment. The Clerk's Office shall provide Plaintiff with a copy of the

Local Rules. IT IS SO ORDERED. The District Court Executive is directed to enter this Order and provide a copy to Plaintiff and the U.S. Marshals Service. DATED this 27th day of February 2009.

S/ Edward F. Shea EDWARD F. SHEA United States District Judge
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