Gibbs v. Chisman et al

Filing 14

ORDER DENYING REQUEST FOR ENTRY OF DEFAULT AND RE-SERVING DEFENDANT CHISMAN. Dispositive Motion due by 3/17/2014. Signed by Judge Thelton E. Henderson on 01/13/2014. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 1/14/2014)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 Plaintiff, 7 8 No. C-13-2488 TEH (PR) KENNETH B. GIBBS, ORDER DENYING REQUEST FOR ENTRY OF DEFAULT AND RE-SERVING DEFENDANT CHISMAN v. R. CHISMAN, et al., (Doc. ##12, 13) 9 Defendants. / United States District Court For the Northern District of California 10 11 Plaintiff Kenneth Gibbs, a former inmate at Pelican Bay 12 13 State Prison (PBSP), filed this civil rights action under 42 U.S.C. 14 § 1983 alleging constitutional violations against PBSP Correctional 15 Officers R. Chisman and J. Juneau. 16 issued an Order of Partial Service, finding that Plaintiff had 17 stated a cognizable claim against Officer Chisman but had not stated 18 a cognizable claim against Officer Juneau. 19 dismissed the claim against Officer Juneau with leave to file a 20 First Amended Complaint (FAC) for Plaintiff to remedy the 21 deficiencies noted by the Court. 22 dismissed the claim against Officer Juneau, finding that Plaintiff 23 had not stated a cognizable claim against Officer Juneau in his FAC. 24 On July 8, 2013, the Court Doc. #7. The Court On August 21, 2013, the Court On December 10, 2013, Plaintiff filed a declaration for 25 entry of default against Officer Chisman because the time for her to 26 answer the complaint and file a dispositive motion had passed. 27 #12. 28 Chisman was returned unexecuted with a remark by the Marshal that it Doc. However, on December 12, 2013, the summons as to Officer 1 was “returned unexecuted and process was not served through 2 administrative error–-request resubmission for service.” 3 4 Doc. #13. Accordingly, Plaintiff’s request for entry of default is denied and Defendant Chisman will be re-served. 5 For the foregoing reasons, the Court orders as follows: 6 1. The request for entry of default is denied. 7 2. Doc. #12. The Clerk shall issue summons and the United States 8 Marshal shall serve, without prepayment of fees, copies of the 9 complaint, doc. #4, the FAC, doc. #9, and all attachments thereto, 10 and copies of the Order of Partial Service, doc. #7, the Order 11 Dismissing Claim Against Officer Juneau, doc. #10, and this Order on 12 Officer Chisman. 13 Plaintiff and mail a courtesy copy of this Order, the complaint and 14 FAC to the California Attorney General’s Office in San Francisco. 15 16 17 3. The Clerk shall also mail a copy of this Order to To expedite the resolution of this case, the Court orders as follows: a. No later than sixty-three (63) days from the 18 date of this order, Defendant shall file a motion for summary 19 judgment or other dispositive motion. 20 shall be supported by adequate factual documentation and shall 21 conform in all respects to Federal Rule of Civil Procedure 56, and 22 shall include as exhibits all records and incident reports stemming 23 from the events at issue. 24 required Ninth Circuit notice to Plaintiff for opposing dispositive 25 motions required by Rand v. Rowland, 154 F.3d 952, 962–63 (9th Cir. 26 1998)(motion for summary judgment) and Wyatt v. Terhune, 315 F.3d 27 1108, 1120 n.14 (9th Cir. 2003) (motion to dismiss). 28 A motion for summary judgment Defendant’s motion shall include the 2 See Woods v. 1 Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirements set 2 out in Rand must be served concurrently with the motion); Stratton 3 v. Terhune, 697 F.3d 1004, 1008 (9th Cir. 2012) (notice requirement 4 set out in Wyatt must be served concurrently with motion to dismiss 5 for failure to exhaust available administrative remedies). 6 Defendant is of the opinion that this case cannot be resolved by 7 summary judgment or other dispositive motion, she shall so inform 8 the Court prior to the date her motion is due. 9 with the Court shall be served promptly on Plaintiff. 10 b. If All papers filed Plaintiff’s opposition to the dispositive motion 11 shall be filed with the Court and served upon Defendant no later 12 than thirty-five (35) days after Defendant serves Plaintiff with the 13 motion. 14 c. Plaintiff is advised that a motion for summary 15 judgment under Rule 56 of the Federal Rules of Civil Procedure will, 16 if granted, end your case. 17 order to oppose a motion for summary judgment. 18 judgment must be granted when there is no genuine issue of material 19 fact - that is, if there is no real dispute about any fact that 20 would affect the result of your case, the party who asked for 21 summary judgment is entitled to judgment as a matter of law, which 22 will end your case. 23 summary judgment that is properly supported by declarations (or 24 other sworn testimony), you cannot simply rely on what your amended 25 complaint says. 26 declarations, depositions, answers to interrogatories, or 27 authenticated documents, as provided in Rule 56(c), that contradict 28 Rule 56 tells you what you must do in Generally, summary When a party you are suing makes a motion for Instead, you must set out specific facts in 3 1 the facts shown in Defendant’s declarations and documents and show 2 that there is a genuine issue of material fact for trial. 3 not submit your own evidence in opposition, summary judgment, if 4 appropriate, may be entered against you. 5 granted, your case will be dismissed and there will be no trial. 6 Rand, 154 F.3d at 962–63. 7 If you do If summary judgment is Plaintiff also is advised that a motion to dismiss for 8 failure to exhaust administrative remedies under 42 U.S.C. 9 § 1997e(a) will, if granted, end your case, albeit without 10 prejudice. 11 opposition in order to dispute any “factual record” presented by the 12 Defendants in their motion to dismiss. 13 n.14. 14 did exhaust your available administrative remedies before coming to 15 federal court. 16 are statements signed under penalty of perjury by you or others who 17 have personal knowledge of relevant matters; (2) authenticated 18 documents – documents accompanied by a declaration showing where 19 they came from and why they are authentic, or other sworn papers 20 such as answers to interrogatories or depositions; (3) statements in 21 your complaint insofar as they were made under penalty of perjury 22 and they show that you have personal knowledge of the matters stated 23 therein. 24 the Court can decide disputed issues of fact with regard to this 25 portion of the case. 26 27 28 You must “develop a record” and present it in your Wyatt, 315 F.3d at 1120 You have the right to present any evidence to show that you Such evidence may include: (1) declarations, which In considering a motion to dismiss for failure to exhaust, Stratton, 697 F.3d at 1008-09. (The Rand and Wyatt/Stratton notices above do not excuse Defendant’s obligation to serve said notices again concurrently with 4 1 motions to dismiss for failure to exhaust available administrative 2 remedies and motions for summary judgment. 3 d. Woods, 684 F.3d at 935.) Defendant shall file a reply brief within 4 fourteen (14) days of the date on which Plaintiff serves her with 5 the opposition. 6 e. The motion shall be deemed submitted as of the 7 date the reply brief is due. 8 unless the Court so orders at a later date. 9 4. No hearing will be held on the motion Discovery may be taken in accordance with the Federal 10 Rules of Civil Procedure. 11 the parties may conduct discovery. 12 5. No further court order is required before All communications by Plaintiff with the Court must be 13 served on Defendant, or Defendant’s counsel once counsel has been 14 designated, by mailing a true copy of the document to Defendants or 15 Defendants’ counsel. 16 6. It is Plaintiff’s responsibility to prosecute this 17 case. 18 change of address and must comply with the Court’s orders in a 19 timely fashion. 20 this action pursuant to Federal Rule of Civil Procedure 41(b). 21 Plaintiff must keep the Court and all parties informed of any Failure to do so may result in the dismissal of IT IS SO ORDERED. 22 23 24 DATED 01/13/2014 THELTON E. HENDERSON United States District Judge 25 26 27 28 5

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