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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Plaintiff,

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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)
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Defendants.
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United States District Court
For the Northern District of California

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Plaintiff Kenneth Gibbs, a former inmate at Pelican Bay

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State Prison (PBSP), filed this civil rights action under 42 U.S.C.

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§ 1983 alleging constitutional violations against PBSP Correctional

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Officers R. Chisman and J. Juneau.

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issued an Order of Partial Service, finding that Plaintiff had

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stated a cognizable claim against Officer Chisman but had not stated

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a cognizable claim against Officer Juneau.

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dismissed the claim against Officer Juneau with leave to file a

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First Amended Complaint (FAC) for Plaintiff to remedy the

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deficiencies noted by the Court.

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dismissed the claim against Officer Juneau, finding that Plaintiff

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had not stated a cognizable claim against Officer Juneau in his FAC.

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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

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entry of default against Officer Chisman because the time for her to

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answer the complaint and file a dispositive motion had passed.

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#12.

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Chisman was returned unexecuted with a remark by the Marshal that it

Doc.

However, on December 12, 2013, the summons as to Officer

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was “returned unexecuted and process was not served through

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administrative error–-request resubmission for service.”

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Doc. #13.

Accordingly, Plaintiff’s request for entry of default is
denied and Defendant Chisman will be re-served.

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For the foregoing reasons, the Court orders as follows:

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1. The request for entry of default is denied.

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2.

Doc. #12.

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, doc. #4, the FAC, doc. #9, and all attachments thereto,

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and copies of the Order of Partial Service, doc. #7, the Order

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Dismissing Claim Against Officer Juneau, doc. #10, and this Order on

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Officer Chisman.

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Plaintiff and mail a courtesy copy of this Order, the complaint and

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FAC to the California Attorney General’s Office in San Francisco.

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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

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date of this order, Defendant shall file a motion for summary

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judgment or other dispositive motion.

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shall be supported by adequate factual documentation and shall

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conform in all respects to Federal Rule of Civil Procedure 56, and

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shall include as exhibits all records and incident reports stemming

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from the events at issue.

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required Ninth Circuit notice to Plaintiff for opposing dispositive

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motions required by Rand v. Rowland, 154 F.3d 952, 962–63 (9th Cir.

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1998)(motion for summary judgment) and Wyatt v. Terhune, 315 F.3d

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1108, 1120 n.14 (9th Cir. 2003) (motion to dismiss).

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A motion for summary judgment

Defendant’s motion shall include the

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See Woods v.

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Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirements set

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out in Rand must be served concurrently with the motion); Stratton

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v. Terhune, 697 F.3d 1004, 1008 (9th Cir. 2012) (notice requirement

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set out in Wyatt must be served concurrently with motion to dismiss

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for failure to exhaust available administrative remedies).

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Defendant is of the opinion that this case cannot be resolved by

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summary judgment or other dispositive motion, she shall so inform

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the Court prior to the date her motion is due.

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with the Court shall be served promptly on Plaintiff.

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b.

If

All papers filed

Plaintiff’s opposition to the dispositive motion

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shall be filed with the Court and served upon Defendant no later

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than thirty-five (35) days after Defendant serves 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.

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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 amended

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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(c), that contradict

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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

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the facts shown in Defendant’s declarations and documents and show

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that there is a genuine issue of material fact for trial.

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not submit your own evidence in opposition, summary judgment, if

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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, 154 F.3d at 962–63.

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If you do

If summary judgment is

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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n.14.

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did exhaust your available administrative remedies before coming to

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federal court.

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are statements signed under penalty of perjury by you or others who

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have personal knowledge of relevant matters; (2) authenticated

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documents – documents accompanied by a declaration showing where

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they came from and why they are authentic, or other sworn papers

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such as answers to interrogatories or depositions; (3) statements in

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your complaint insofar as they were made under penalty of perjury

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and they show that you have personal knowledge of the matters stated

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therein.

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the Court can decide disputed issues of fact with regard to this

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portion of the case.

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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
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motions to dismiss for failure to exhaust available administrative

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remedies and motions for summary judgment.

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d.

Woods, 684 F.3d at 935.)

Defendant shall file a reply brief within

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fourteen (14) days of the date on which Plaintiff serves her 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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4.

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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5.

No further court order is required before

All communications by Plaintiff with the Court must be

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served on Defendant, or Defendant’s counsel once counsel has been

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designated, by mailing a true copy of the document to Defendants or

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Defendants’ counsel.

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6.

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).

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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.

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DATED

01/13/2014
THELTON E. HENDERSON
United States District Judge

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