Johnson v. Cate et al

Filing 12

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/30/11 DENYING 10 Motion to Appoint Counsel. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRENCE L. DAVIS,

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Plaintiff,

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vs.
SAC CO. JAIL, et al.,

ORDER AND ORDER DIRECTING SERVICE

Defendants.

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No. CIV S-11-1027 CKD P

BY THE UNITED STATES MARSHAL
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WITHOUT PREPAYMENT OF COSTS

Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. By order

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filed November 21, 2011, the court determined that service of the complaint is appropriate for

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defendants Hernandez and Woodward and ordered plaintiff to provide information for service of

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process on form USM-285, a completed summons, sufficient copies of the complaint for service,

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and a notice of compliance. Plaintiff has filed the required papers. Accordingly, IT IS HEREBY

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ORDERED that:

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1. The Clerk of the Court is directed to forward to the United States Marshal the

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instructions for service of process, the completed summons, copies of the complaint, copies of

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the form Consent to Proceed Before a United States Magistrate Judge, and copies of this order.

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2. Within fourteen days from the date of this order, the United States Marshal
shall notify defendants Hernandez and Woodward of the commencement of this action and
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request a waiver of service of summons in accordance with the provisions of Fed. R. Civ. P. 4(d)

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and 28 U.S.C. § 566(c).

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3. The United States Marshal shall retain the sealed summons and a copy of the
complaint in its file for future use.

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4. The United States Marshal shall file returned waivers of service of summons as

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well as any requests for waivers that are returned as undelivered as soon as they are received.

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5. If a defendant waives service, the defendant is required to return the signed

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waiver to the United States Marshal. The filing of an answer or a responsive motion does not

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relieve a defendant of this requirement, and the failure to return the signed waiver may subject a

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defendant to an order to pay the costs of service pursuant to Fed. R. Civ. P. 4(d)(2).

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6. If a defendant does not return a waiver of service of summons within sixty
days from the date of mailing the request for waiver, the United States Marshal shall:

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a. Personally serve process and a copy of this order on the defendant in

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accordance with Fed. R. Civ. P. 4 and 28 U.S.C. § 566(c) and shall

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command all necessary assistance from the California Department of

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Corrections and Rehabilitation (CDCR) or any last known employer of a

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defendant to execute this order. The United States Marshal shall maintain

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the confidentiality of all information so provided pursuant to this order.

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b. File, within fourteen days after personal service is effected, the return

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of service, along with evidence of any attempts to secure a waiver of

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service of summons and of the costs subsequently incurred in effecting

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service on the defendant. Such costs shall be enumerated on the USM-285

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form and shall include the costs incurred by the United States Marshal’s

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office for photocopying additional copies of the summons and complaint

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and for preparing new USM-285 forms, if required. Costs of service will

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be taxed against the personally served defendant in accordance with the

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provisions of Fed. R. Civ. P. 4(d)(2).

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7. Defendants shall reply to the complaint within the time provided in Fed. R.
Civ. P. 12(a).
8. Unless otherwise ordered, all motions to dismiss, motions for summary

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judgment, motions concerning discovery, motions pursuant to Fed. R. Civ. P. 7, 11, 12, 15, 41,

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55, 56, 59 and 60, and E.D. Cal. R. 110, shall be briefed pursuant to L.R. 230(l). Failure to

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timely oppose such a motion may be deemed a waiver of opposition to the motion. See L.R.

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230(l). Opposition to all other motions need be filed only as directed by the court.

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9. If plaintiff is released from prison while this case is pending, any party may

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request application of other provisions of L.R. 230 in lieu of L.R. 230(l). Until such a motion is

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granted, the provisions of L.R. 230(l) will govern all motions described in #7 above regardless of

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plaintiff’s custodial status. See L.R. 102(d).

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10. Pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003), the

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court hereby informs plaintiff of the following requirements for opposing a motion to dismiss for

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failure to exhaust administrative remedies pursuant to Fed. R. Civ. P. 12(b). Such a motion is a

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request that the court dismiss without prejudice any unexhausted claims. The moving party may

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submit affidavits or declarations under penalty of perjury and admissible documents to support

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the motion to dismiss. To oppose the motion, plaintiff may likewise file declarations under

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penalty of perjury and admissible documents. Plaintiff may rely on plaintiff’s statements made

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under penalty of perjury in the complaint if the complaint shows that plaintiff has personal

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knowledge of the matters stated and plaintiff specifies the parts of the complaint on which

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plaintiff relies. Plaintiff may also rely on one or more affidavits or declarations sworn to by other

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persons who have personal knowledge of relevant matters. In addition, plaintiff may rely on

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written records, but plaintiff must prove that the records are what plaintiff asserts they are. If

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plaintiff fails to contradict defendant’s evidence with admissible evidence, the court may rely on
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defendant’s evidence. In the event both sides submit matters outside of the pleadings, the court

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may look beyond the pleadings and decide disputed issues of fact. If plaintiff does not file a

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written opposition to the motion, the court may consider the failure to act as a waiver of

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opposition to the motion. See L.R. 230(l). If the court grants the motion to dismiss, whether

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opposed or unopposed, plaintiff’s unexhausted claims will be dismissed without prejudice.

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11. Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc),

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and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the court hereby informs plaintiff of

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the following requirements for opposing a motion for summary judgment pursuant to Fed. R.

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Civ. P. 56. Such a motion is a request for an order for judgment in favor of the defendant

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without trial. A defendant’s motion for summary judgment will set forth the facts that the

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defendant contends are not reasonably subject to dispute and that entitle the defendant to

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judgment. To oppose a motion for summary judgment, plaintiff must show proof of his or her

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claims. Plaintiff may do this in one or more of the following ways. Plaintiff may rely on

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plaintiff’s statements made under penalty of perjury in the complaint if the complaint shows that

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plaintiff has personal knowledge of the matters stated and plaintiff specifies those parts of the

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complaint on which plaintiff relies. Plaintiff may serve and file one or more affidavits or

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declarations setting forth the facts that plaintiff believes prove plaintiff’s claims; the person who

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signs an affidavit or declaration must have personal knowledge of the facts stated. Plaintiff may

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rely on written records, but plaintiff must prove that the records are what plaintiff asserts they

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are. Plaintiff may rely on all or any part of the transcript of one or more depositions, answers to

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interrogatories, or admissions obtained in this proceeding. If plaintiff fails to contradict the

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defendant’s evidence with counteraffidavits or other admissible evidence, the court may accept

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defendant’s evidence as true and grant the motion. If there is some good reason why such facts

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are not available to plaintiff when required to oppose a motion for summary judgment, the court

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will consider a request to postpone consideration of the defendant’s motion. See Fed. R. Civ. P.

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56(d). If plaintiff does not serve and file a written opposition to the motion, or a request to
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postpone consideration of the motion, the court may consider the failure to act as a waiver of

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opposition to the defendant’s motion. See L.R. 230(l). If the court grants the motion for

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summary judgment, whether opposed or unopposed, judgment will be entered for the defendant

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without a trial and the case will be closed as to that defendant.

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12. Unsigned affidavits or declarations will be stricken, and affidavits or
declarations not signed under penalty of perjury have no evidentiary value.

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13. Each party proceeding without counsel shall keep the court informed of a

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current address at all times while the action is pending. Any change of address must be reported

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promptly to the court in a separate document captioned for this case and entitled “Notice of

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Change of Address.” A notice of change of address must be properly served on other parties.

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Service of documents at the address of record for a party is fully effective. See L.R. 182(f). A

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party’s failure to inform the court of a change of address may result in the imposition of

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sanctions including dismissal of the action.

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14. The Clerk of the Court shall serve on plaintiff a copy of the Local Rules of
Court.

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15. The failure of any party to comply with this order, the Federal Rules of Civil

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Procedure, or the Local Rules of Court, may result in the imposition of sanctions including, but

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not limited to, dismissal of the action or entry of default. See Fed. R. Civ. P. 41(b).

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Dated: December 30, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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/mp
davi1027.8

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