Percelle v. Pearson et al
Filing
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ORDER OF SERVICE Dispositive Motion due by 2/5/2013. Signed by Judge Thelton E. Henderson on 11/07/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 11/8/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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STEVEN DALE PERCELLE,
No. C-12-5343 TEH (PR)
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United States District Court
For the Northern District of California
Plaintiff,
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v.
ORDER OF SERVICE
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S. PEARSON, D. ARREDONDO, M.
WILLIAMS, R. WHITE, S. MAUGHMER,
J. JEFFERSON, M. BRODE and D.
FLETCHER,
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Defendants.
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Plaintiff Steven Dale Percelle, a prisoner presently
incarcerated at the Correction Training Facility (“CTF”) in Soledad,
California, has filed a pro se civil rights complaint under 42
U.S.C. § 1983, alleging that his First and Fourteenth Amendment
rights under the United States Constitution were violated by
Defendants who classified him as a gang member in retaliation for
prosecuting an unrelated lawsuit against the California Department
of Corrections and Rehabilitation (“CDCR”).
This
action is now before the Court for initial screening pursuant to 28
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U.S.C. § 1915A.
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Doc. #1 at 4-9.
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I
Federal courts must engage in a preliminary screening of
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cases in which prisoners seek redress from a governmental entity or
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officer or employee of a governmental entity.
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The court must identify cognizable claims or dismiss the complaint,
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or any portion of the complaint, if the complaint “is frivolous,
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malicious, or fails to state a claim upon which relief may be
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granted,” or “seeks monetary relief from a defendant who is immune
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from such relief.”
Id. § 1915A(b).
28 U.S.C. § 1915A(a).
Pleadings filed by pro se
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litigants, however, must be liberally construed.
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627 F.3d 338, 342 (9th Cir. 2010).
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Hebbe v. Pliler,
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To state a claim under 42 U.S.C. § 1983, a plaintiff must
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allege two essential elements:
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Constitution or laws of the United States was violated, and (2) that
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the alleged violation was committed by a person acting under the
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color of state law.
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(1) that a right secured by the
West v. Atkins, 487 U.S. 42, 48 (1988).
The Due Process Clause of the Fourteenth Amendment
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protects individuals against governmental deprivations of liberty.
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Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972); Mullins v.
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Oregon, 57 F.3d 789, 795 (9th Cir. 1995).
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conditions that are so severe as to affect the sentence imposed in
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an unexpected manner implicate the Due Process Clause itself,
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whether or not they are authorized by state law.
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Conner, 515 U.S. 472, 484 (1995) (citing Vitek v. Jones, 445 U.S.
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480, 493 (1980) (transfer to mental hospital), and Washington v.
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Harper, 494 U.S. 210, 221-22 (1990) (involuntary administration of
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Changes in prison
See Sandin v.
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psychotropic drugs)).
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and are closely related to the expected terms of confinement may
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also amount to deprivations of a procedurally protected liberty
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interest if the deprivation imposes an “atypical and significant
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hardship on the inmate in relation to the ordinary incidents of
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prison life.”
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“atypical and significant [under Sandin] . . . requires a case by
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case, fact by fact consideration.”
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861 (9th Cir. 2003) (quoting Keenan v. Hall, 83 F.3d 1083, 1089 (9th
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Deprivations that are authorized by state law
Sandin, 515 U.S. at 484.
Whether a restraint is
Ramirez v. Galaza, 334 F.3d 850,
Cir. 1996)).
“Within the prison context, a viable claim of First
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Amendment retaliation entails five basic elements:
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that a state actor took some adverse action against an inmate
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(2) because of (3) that prisoner’s protected conduct, and that such
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action (4) chilled the inmate’s exercise of his First Amendment
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rights, and (5) the action did not reasonably advance a legitimate
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correctional goal.”
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Cir. 2005) (footnote omitted).
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is conduct protected under the First Amendment right to petition the
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government for redress of grievances, see Hines v. Gomez, 853 F.
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Supp. 329, 333 (N.D. Cal. 1994), and protects both the filing, see
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id., and content, see Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.
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1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223,
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230 n.2 (2001), of prison grievances.
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he suffered harm, see Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.
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2000) (holding that a retaliation claim is not actionable unless
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there is an allegation of harm), but he need not demonstrate a total
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(1) An assertion
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th
The right to file a prison grievance
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The prisoner must allege that
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chilling of his First Amendment rights in order to establish a
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retaliation claim.
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argument that inmate did not state a claim for relief because he had
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been able to file inmate grievances and a lawsuit).
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See Rhodes, 408 F.3d at 568-69 (rejecting
In his complaint, Plaintiff makes the following
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allegations.
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lawsuit against the CDCR for the unlawful medical treatment he
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received at CTF.
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CDCR in the amount of $550,000.
Since August 2003, Plaintiff has been prosecuting a
On June 23, 2010, default was entered against the
Comp. ¶ 9.
On November 18, 2010,
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Defendants Pearson, Williams and Arrendondo initiated a cell search
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of Plaintiff’s cell and accused him of being a member of a prison
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gang.
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Fletcher authored a memorandum declaring that Plaintiff was a prison
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gang member.
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Jefferson and Brode officially validated Plaintiff as a member of
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the Black Guerrilla Family (“BGF”) Prison Gang without verifying the
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requisite criteria as mandated by Title 15, California Code of
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Regulations, section 3378.
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acts of Defendants Pearson, Williams, Arredondo, Jefferson, Fletcher
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and Brode labeling Plaintiff a gang member caused Plaintiff to be
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locked up in Administrative Segregation (“Ad Seg”), pending review
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by the CTF Institutional Classification Committee (“ICC”).
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21.
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by Defendants White and Maughmer, for review of the evidence showing
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that Plaintiff was a member of a gang.
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White and Maughmer validated Plaintiff as a member of a prison gang.
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Comp. ¶ 22.
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Comp. ¶ 10.
On August 27, 2011, Defendants Pearson and
Comp. ¶ 18.
On December 15, 2011, Defendants
Comp. ¶ 19.
On January 23, 2012, the
Comp. ¶
On January 26, 2012, Plaintiff appeared before the ICC, chaired
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Comp. ¶ 22.
Defendants
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Liberally construed, Plaintiff’s allegations appear to
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state the following cognizable 42 U.S.C. § 1983 claims:
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Plaintiff’s due process rights were violated by all named Defendants
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who validated Plaintiff as a prison gang member in retaliation for
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his prosecuting a lawsuit against the CDCR, which caused him to be
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locked up in Ad Seg, and (2) that Plaintiff’s First Amendment rights
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were violated by all Defendants for retaliating against him for
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exercising his First Amendment right to access the courts.
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(1) that
III
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For the foregoing reasons and for good cause shown:
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1.
The Clerk shall issue summons and the United States
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Marshal shall serve, without prepayment of fees, copies of the
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Complaint in this matter, all attachments thereto, and copies of
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this Order on CTF employees S. Pearson, D. Arrendondo, M. Williams,
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R. White, S. Maughmer, J. Jefferson, M. Brode and D. Fletcher.
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Clerk also shall serve a copy of this Order on Plaintiff.
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2.
The
To expedite the resolution of this case, the Court
orders as follows:
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a.
No later than ninety (90) days from the date of
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this Order, Defendants shall file a motion for summary judgment or
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other dispositive motion.
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supported by adequate factual documentation and shall conform in all
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respects to Federal Rule of Civil Procedure 56, and shall include as
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exhibits all records and incident reports stemming from the events
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at issue.
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resolved by summary judgment or other dispositive motion, they shall
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so inform the Court prior to the date their motion is due.
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A motion for summary judgment shall be
If Defendants are of the opinion that this case cannot be
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All
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papers filed with the Court shall be served promptly on Plaintiff.
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b.
Plaintiff’s opposition to the dispositive motion
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shall be filed with the Court and served upon Defendants no later
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than thirty (30) days after Defendants serve Plaintiff with the
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motion.
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c.
Plaintiff is advised that a motion for summary
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judgment under Rule 56 of the Federal Rules of Civil Procedure will,
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if granted, end your case.
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order to oppose a motion for summary judgment.
Rule 56 tells you what you must do in
Generally, summary
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judgment must be granted when there is no genuine issue of material
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fact - that is, if there is no real dispute about any fact that
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would affect the result of your case, the party who asked for
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summary judgment is entitled to judgment as a matter of law, which
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will end your case.
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summary judgment that is properly supported by declarations (or
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other sworn testimony), you cannot simply rely on what your
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complaint says.
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declarations, depositions, answers to interrogatories, or
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authenticated documents, as provided in Rule 56(e), that contradict
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the facts shown in the defendants’ declarations and documents and
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show that there is a genuine issue of material fact for trial.
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you do not submit your own evidence in opposition, summary judgment,
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if appropriate, may be entered against you.
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granted, your case will be dismissed and there will be no trial.
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Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc)
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(App. A).
When a party you are suing makes a motion for
Instead, you must set out specific facts in
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If
If summary judgment is
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Plaintiff also is advised that a motion to dismiss for
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failure to exhaust administrative remedies under 42 U.S.C.
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§ 1997e(a) will, if granted, end your case, albeit without
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prejudice.
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opposition in order to dispute any “factual record” presented by the
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Defendants in their motion to dismiss.
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1108, 1120 n.14 (9th Cir. 2003).
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of declarations (statements signed under penalty of perjury) or
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authenticated documents, that is, documents accompanied by a
You must “develop a record” and present it in your
Wyatt v. Terhune, 315 F.3d
Such evidence may be in the form
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declaration showing where they came from and why they are authentic,
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or other sworn papers, such as answers to interrogatories or
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depositions.
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If Defendants file a motion to dismiss and it is granted,
your case will be dismissed and there will be no trial.
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d.
Defendants shall file a reply brief within
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fifteen (15) days of the date on which Plaintiff serves them with
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the opposition.
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e.
The motion shall be deemed submitted as of the
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date the reply brief is due.
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unless the Court so orders at a later date.
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3.
No hearing will be held on the motion
Discovery may be taken in accordance with the Federal
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Rules of Civil Procedure.
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the parties may conduct discovery.
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4.
No further Court order is required before
All communications by Plaintiff with the Court must
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be served on Defendants, or Defendants’ counsel once counsel has
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been designated, by mailing a true copy of the document to
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Defendants or Defendants’ counsel.
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5.
It is Plaintiff’s responsibility to prosecute this
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case.
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change of address and must comply with the Court’s orders in a
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timely fashion.
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this action pursuant to Federal Rule of Civil Procedure 41(b).
Plaintiff must keep the Court and all parties informed of any
Failure to do so may result in the dismissal of
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IT IS SO ORDERED.
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DATED
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11/07/2012
THELTON E. HENDERSON
United States District Judge
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G:\PRO-SE\TEH\CR.12\Percelle 12-5343-order of service.wpd
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