Clay v. David Livingston et al

Filing 40

ORDER by Magistrate Judge Nandor Vadas denying 28 Motion to Compel and Serving Additional Defendants. (njvlc1, COURT STAFF) (Filed on 9/29/2014)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 EUREKA DIVISION 6 7 WILLIE MORRIS CLAY, No. C 13-3437 NJV (PR) Plaintiff, 8 9 11 For the Northern District of California United States District Court 10 ORDER DENYING MOTION TO COMPEL AND SERVING ADDITIONAL DEFENDANTS v. DAVID LIVINGSTON, et. al., Defendants. / 12 13 Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 14 U.S.C. § 1983, alleging constitutional violations during daytime fasting for Ramadan. Three 15 Defendants have been served. Presently pending is Plaintiff’s second amended complaint 16 that the Court will construe as a motion to amend, and Plaintiff’s motion to compel. 17 The second amended complaint contains the same general allegations as the 18 operative first amended complaint but also names three additional Defendants whose 19 identities were not previously known. Defendants state that they will stipulate to a motion 20 for leave to amend to substitute the Defendants. Docket No. 33 at 2. Therefore, the 21 motion to amend will be granted and this case will proceed on the second amended 22 complaint. The Court will order service on Senior Chaplain Harold Albert, Sgt. Nubia 23 Zamora and lead cook Jose Garcia. 24 With respect to the motion to compel, Plaintiff submitted a discovery request to 25 Defendants on May 19, 2014. More than a week before the deadline for Defendants to 26 respond to the request, Plaintiff filed a motion to compel with the Court which was received 27 around the same time that Defendants provided plaintiff with discovery responses. As 28 Defendants have provided discovery responses and as plaintiff has not set forth if the 1 responses were insufficient, the motion to compel is denied.1 2 CONCLUSION 3 1. The motion to compel (Docket No. 28) is DENIED. 4 2. The motion to amend is GRANTED and the case continues on the second 5 6 amended complaint. 3. The clerk shall issue a summons and Magistrate Judge jurisdiction consent form Magistrate Judge jurisdiction consent form, copies of the second amended complaint 9 (Docket No. 32) with attachments and copies of this order on Senior Chaplain Harold 10 Albert, Sgt. Nubia Zamora and lead cook Jose Garcia at Martinez Detention Facility. 11 For the Northern District of California and the United States Marshal shall serve, without prepayment of fees, the summons, 8 United States District Court 7 4. In order to expedite the resolution of this case, the Court orders as follows: 12 a. No later than sixty days from the date of service, Defendants shall file a 13 motion for summary judgment or other dispositive motion.2 The motion shall be supported 14 by adequate factual documentation and shall conform in all respects to Federal Rule of 15 Civil Procedure 56, and shall include as exhibits all records and incident reports stemming 16 from the events at issue. If Defendants are of the opinion that this case cannot be resolved 17 by summary judgment, they shall so inform the court prior to the date the summary 18 judgment motion is due. All papers filed with the court shall be promptly served on the 19 Plaintiff. 20 b. At the time the dispositive motion is served, Defendant shall also serve, on 21 1 22 23 24 25 One of plaintiff’s discovery requests involved the involuntary disclosure of other inmates religious accommodations, requests, and grievances. Defendants did not provide this information noting that the request was personal and confidential and would invade the privacy rights of inmates not a party to the lawsuit. See, e.g. Frederick v. Cal. Dep’t of Corr. & Rehab., 2011 WL 1884201, at *3 (N.D. Cal. May 18, 2011) (discovery disclosures of special needs, such as religious accommodations, raises serious concerns about the non-party inmates’ private information). Plaintiff has not met his burden to compel discovery of this information. 2 26 27 28 The previously served Defendants have until December 17, 2014, to file a dispositive motion. As the new Defendants have not yet been served and the Court is not certain if existing counsel will represent these Defendants, the December 17, 2014 date will not be vacated. If existing counsel represents the new Defendants, a motion for an extension of time may be filed. 2 1 a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 2 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 3 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and 4 Wyatt notices must be given at the time motion for summary judgment or motion to dismiss 5 for nonexhaustion is filed, not earlier); Rand at 960 (separate paper requirement). 6 c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 7 court and served upon defendants no later than thirty days from the date the motion was 8 served upon him. Plaintiff must read the attached page headed "NOTICE -- WARNING," 9 which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 11 For the Northern District of California United States District Court 10 If defendants file a motion for summary judgment claiming that plaintiff failed to exhaust his 12 available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take 13 note of the attached page headed "NOTICE -- WARNING (EXHAUSTION)," which is 14 provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 15 16 17 18 19 d. If Defendants wish to file a reply brief, he shall do so no later than fifteen days after the opposition is served upon her. 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. 5. All communications by Plaintiff with the Court must be served on Defendant, or 20 Defendant’s counsel once counsel has been designated, by mailing a true copy of the 21 document to Defendant or Defendant’s counsel. 22 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 23 No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 24 parties may conduct discovery. 25 7. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 26 informed of any change of address by filing a separate paper with the clerk headed “Notice 27 of Change of Address.” He also must comply with the Court's orders in a timely fashion. 28 3 1 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 2 Federal Rule of Civil Procedure 41(b). 3 IT IS SO ORDERED. 4 5 Dated: September 29, 2014. 6 NANDOR J. VADAS United States Magistrate Judge 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 EUREKA DIVISION 4 5 6 WILLIE MORRIS CLAY, II, No. 1:13-CV-03437 NJV 7 Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 DAVID LIVINGSTON, et al., 11 For the Northern District of California United States District Court 10 Defendants. ___________________________________/ 12 13 I, the undersigned, hereby certify that on September 29, 2014, I SERVED a true and correct 14 copy of the attached by placing said copy in a postage paid envelope addressed to the person listed 15 below and depositing said envelope in the U.S. Mail. 16 17 18 19 Willie Morris Clay , II AR 3562 Pelican Bay State Prison 7B-117 P.O. Box 7500 Crescent City, CA 95532 20 21 ____________________________________ 22 Linn Van Meter Administrative Law Clerk to the Honorable Nandor J. Vadas 23 24 25 26 27 28 5

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