Gray v. Doe

Filing 58

ORDER OF SERVICE; SCHEDULING DISPOSTIVE MOTION Habeas Answer or Dispositive Motion due by 6/16/2014.. Signed by Judge William Alsup on 4/15/14. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 4/16/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KENNETH GRAY,
Plaintiff,

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For the Northern District of California

United States District Court

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No. C 13-1229 WHA (PR)

v.

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ORDER OF SERVICE;
SCHEDULING DISPOSITIVE
MOTION

C. SMITH; L. PENNISI; R.
GROUNDS; ARTURO
VILLALOBOS,

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Defendants

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/

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Plaintiff, a pro se prisoner, filed this civil rights case under 42 U.S.C. 1983 against

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officials at Salinas Valley State Prison (“SVSP”) claiming that they violated his Eighth

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Amendment rights and state law. Plaintiff was granted leave to file an amended complaint, and

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he has done so against defendants C. Smith; L. Pennisi; R. Grounds and Arturo Villalobos.

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When liberally construed, the amended complaint states cognizable claims against all four

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defendants. Service of process has been completed on Smith, Pennisi and Grounds. Villalobos

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has not yet been served, as he was not named in the original complaint. Accordingly, service

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will be ordered upon Villalobos, and dispositive motions from defendants will be ordered,

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below. If defendants choose to file a dispositive motion, they shall not make any arguments

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that have already been rejected in prior orders in this case, particularly in the order dated

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February 21, 2014.

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For the reasons set out above, it is hereby ordered as follows:
1. The clerk shall issue summons and the United States Marshal shall serve, without

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prepayment of fees, a copy of the amended complaint with all attachments thereto, and a copy

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of this order upon defendants: Correctional Sergeant Arturo Villalobos at Salinas Valley

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State Prison.

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2. Defendants shall file an answer to the amended complaint withing 21 days of the
date Villalobos is served.
3. In order to expedite the resolution of this case:

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a. No later than 91 days from the date this order is filed, defendants shall file a

this case cannot be resolved by summary judgment, they shall so inform the court prior to the

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date the summary judgment motion is due. All papers filed with the court shall be promptly

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For the Northern District of California

motion for summary judgment or other dispositive motion. If defendants are of the opinion that

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United States District Court

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served on the plaintiff.

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b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the

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court and served upon defendants no later than 28 days from the date of service of the motion.

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Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to

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him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and

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Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

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c. Defendants shall file a reply brief no later than 14 days after the date of
service of the opposition.

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d. 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.

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e. Along with their motion, defendants shall proof that they served plaintiff the

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Rand warning at the same time they served him with any motion for summary judgment.

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Failure to do so will result in the summary dismissal of their motion without prejudice.

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IT IS SO ORDERED.

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Dated: April
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, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case

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dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil

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Procedure will, if granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for summary judgment.

fact--that is, if there is no real dispute about any fact that would affect the result of your case,

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the party who asked for summary judgment is entitled to judgment as a matter of law, which

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will end your case. When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply rely on what

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For the Northern District of California

Generally, summary judgment must be granted when there is no genuine issue of material

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United States District Court

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your complaint says. Instead, you must set out specific facts in declarations, depositions,

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answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that

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contradict the facts shown in the defendant's declarations and documents and show that there is

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a genuine issue of material fact for trial. If you do not submit your own evidence in opposition,

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summary judgment, if appropriate, may be entered against you. If summary judgment is

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granted, your case will be dismissed and there will be no trial.

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