Pedroza v. Pham et al

Filing 8

ORDER FOR SERVICE OF PROCESS AND SCHEDULING. Signed by Judge Jon S. Tigar on February 27, 2013. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 2/27/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 JAIRO BRAVO PEDROZA, Plaintiff, 9 11 For the Northern District of California United States District Court 10 No. C 12-1341 JST (PR) v. ORDER FOR SERVICE OF PROCESS AND SCHEDULING San Jose Police Officer PHAM, # 3759; et al., 12 13 Defendants. _________________________________/ 14 The Court earlier determined that the complaint stated a claim under 42 U.S.C. § 1983 15 against San Jose police officer Pham for a violation of plaintiff’s Fourth Amendment rights, 16 and dismissed with leave to amend as to other claims and other defendants. See Docket # 4. 17 Plaintiff never filed an amended complaint, and the deadline by which to do so has long 18 passed. Accordingly, to move this action toward resolution, the Court now orders: 19 1. The complaint states a cognizable § 1983 claim against San Jose police officer 20 Pham for a violation of plaintiff’s Fourth Amendment rights. All other defendants and 21 claims are dismissed. 22 2. The clerk shall issue a summons and the United States Marshal shall serve, 23 without prepayment of fees, the summons, a copy of the complaint and a copy of all the 24 documents in the case file upon San Jose police officer Pham (badge # 3759). 25 3. In order to expedite the resolution of this case, the following briefing schedule 26 for dispositive motions is set: 27 28 a. 1 No later than 91 days from the date this order is filed, defendant must 2 file and serve a motion for summary judgment or other dispositive motion. If defendant is of 3 the opinion that this case cannot be resolved by summary judgment, defendant must so 4 inform the Court prior to the date the motion is due. A motion for summary judgment also 5 must be accompanied by a Rand notice so that plaintiff will have fair, timely and adequate 6 notice of what is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 7 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th 8 Cir. 1998), must be served concurrently with motion for summary judgment). A motion to 9 dismiss for failure to exhaust available administrative remedies similarly must be accompanied by a Wyatt notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012). b. 11 For the Northern District of California United States District Court 10 Plaintiff’s opposition to the summary judgment or other dispositive 12 motion must be filed with the Court and served upon defendant no later than 28 days from 13 the date the motion is filed. Plaintiff must bear in mind the notice and warning regarding 14 summary judgment provided later in this order as he prepares his opposition to any motion 15 for summary judgment. Plaintiff also must bear in mind the notice and warning regarding 16 motions to dismiss for non-exhaustion provided later in this order as he prepares his 17 opposition to any motion to dismiss. c. 18 Defendant shall file a reply brief no later than 14 days after the date the 19 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is 20 due. No hearing will be held on the motion. 21 4. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 22 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 23 must do in order to oppose a motion for summary judgment. Generally, summary judgment 24 must be granted when there is no genuine issue of material fact – that is, if there is no real 25 dispute about any fact that would affect the result of your case, the party who asked for 26 summary judgment is entitled to judgment as a matter of law, which will end your case. 27 When a party you are suing makes a motion for summary judgment that is properly 28 supported by declarations (or other sworn testimony), you cannot simply rely on what your 2 1 complaint says. Instead, you must set out specific facts in declarations, depositions, answers 2 to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the 3 facts shown in the defendant’s declarations and documents and show that there is a genuine 4 issue of material fact for trial. If you do not submit your own evidence in opposition, 5 summary judgment, if appropriate, may be entered against you. If summary judgment is 6 granted, your case will be dismissed and there will be no trial. Rand v. Rowland, 154 F.3d 7 952, 962-63 (9th Cir. 1998) (en banc) (App. A). 8 9 Plaintiff also is advised that a motion to dismiss for failure to exhaust available 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 11 For the Northern District of California United States District Court 10 dispute any “factual record” presented by defendant in his motion to dismiss. Wyatt v. 12 Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). 13 (The Rand and Wyatt notices above do not excuse defendant’s obligation to serve said 14 notices again concurrently with motions to dismiss for failure to exhaust available 15 administrative remedies and motions for summary judgment. Woods, 684 F.3d at 939). 16 5. All communications by plaintiff with the Court must be served on defendant’s 17 counsel by mailing a true copy of the document to defendant’s counsel. The Court may 18 disregard any document which a party files but fails to send a copy of to his opponent. Until 19 a defendant’s counsel has been designated, plaintiff may mail a true copy of the document 20 directly to defendant, but once a defendant is represented by counsel, all documents must be 21 mailed to counsel rather than directly to that defendant. 22 6. Discovery may be taken in accordance with the Federal Rules of Civil 23 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 24 Rule 16 is required before the parties may conduct discovery. 25 7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep 26 the Court informed of any change of address and must comply with the Court’s orders in a 27 timely fashion. Failure to do so may result in the dismissal of this action for failure to 28 3 1 prosecute pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of 2 change of address in every pending case every time he is moved to a new facility. 3 4 5 6 8. Plaintiff is cautioned that he must include the case name and case number for this case on any document he submits to the Court for consideration in this case. IT IS SO ORDERED. Dated: February 27, 2013 _________________________ JON S. TIGAR United States District 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

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