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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 KENNETH GRAY, Plaintiff, 11 For the Northern District of California United States District Court 10 No. C 13-1229 WHA (PR) v. 12 ORDER OF SERVICE; SCHEDULING DISPOSITIVE MOTION C. SMITH; L. PENNISI; R. GROUNDS; ARTURO VILLALOBOS, 13 14 Defendants 15 / 16 17 Plaintiff, a pro se prisoner, filed this civil rights case under 42 U.S.C. 1983 against 18 officials at Salinas Valley State Prison (“SVSP”) claiming that they violated his Eighth 19 Amendment rights and state law. Plaintiff was granted leave to file an amended complaint, and 20 he has done so against defendants C. Smith; L. Pennisi; R. Grounds and Arturo Villalobos. 21 When liberally construed, the amended complaint states cognizable claims against all four 22 defendants. Service of process has been completed on Smith, Pennisi and Grounds. Villalobos 23 has not yet been served, as he was not named in the original complaint. Accordingly, service 24 will be ordered upon Villalobos, and dispositive motions from defendants will be ordered, 25 below. If defendants choose to file a dispositive motion, they shall not make any arguments 26 that have already been rejected in prior orders in this case, particularly in the order dated 27 February 21, 2014. 28 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 1 prepayment of fees, a copy of the amended complaint with all attachments thereto, and a copy 2 of this order upon defendants: Correctional Sergeant Arturo Villalobos at Salinas Valley 3 State Prison. 4 5 6 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: 7 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 10 date the summary judgment motion is due. All papers filed with the court shall be promptly 11 For the Northern District of California motion for summary judgment or other dispositive motion. If defendants are of the opinion that 9 United States District Court 8 served on the plaintiff. 12 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 13 court and served upon defendants no later than 28 days from the date of service of the motion. 14 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to 15 him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and 16 Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 17 18 c. Defendants shall file a reply brief no later than 14 days after the date of service of the opposition. 19 20 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. 21 e. Along with their motion, defendants shall proof that they served plaintiff the 22 Rand warning at the same time they served him with any motion for summary judgment. 23 Failure to do so will result in the summary dismissal of their motion without prejudice. 24 IT IS SO ORDERED. 25 Dated: April 26 15 , 2014. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 27 28 2 1 2 NOTICE -- WARNING (SUMMARY JUDGMENT) If defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. 5 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, 8 the party who asked for summary judgment is entitled to judgment as a matter of law, which 9 will end your case. When a party you are suing makes a motion for summary judgment that is 10 properly supported by declarations (or other sworn testimony), you cannot simply rely on what 11 For the Northern District of California Generally, summary judgment must be granted when there is no genuine issue of material 7 United States District Court 6 your complaint says. Instead, you must set out specific facts in declarations, depositions, 12 answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that 13 contradict the facts shown in the defendant's declarations and documents and show that there is 14 a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, 15 summary judgment, if appropriate, may be entered against you. If summary judgment is 16 granted, your case will be dismissed and there will be no trial. 17 18 19 20 21 22 23 24 25 26 27 28 3

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