Pacheco v. Gamboa et al

Filing 32

ORDER SETTING BRIEFING SCHEDULE and denying as premature 19 Motion for Summary Judgment; denying as moot 31 Motion for Extension of Time to Locate Defendant. Claims against Allsyer are Dismissed without prejudice and he is terminated as a defendant in this action. Signed by Chief Magistrate Judge Joseph C. Spero on 11/23/15. (klhS, COURT STAFF) (Filed on 11/23/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE P. PACHECO,
Plaintiff,

Case No. 15-cv-00987-JCS (PR)

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v.
United States District Court
Northern District of California

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LAWRENCE GAMBOA, et al.,

ORDER SETTING BRIEFING
SCHEDULE

Defendants.
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Dkt. Nos. 19 and 31

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This is a federal civil rights action. This order addresses two matters: issues related
to an unserved defendant and the briefing schedule.
One defendant, Mark Allsyer, remains unserved, the summons having been returned

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as unexecuted. The Court asked plaintiff to provide a current address for Allsyer, but he

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has been unable to do so and asks for an extension of time.

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The claims against Allsyer are DISMISSED without prejudice and he is

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TERMINATED as a defendant in this action. When plaintiff finds a current address for

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Allsyer, he can file for leave to file an amended complaint that includes Allsyer, or file a

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new civil rights action. The motion for an extension of time (Docket No. 31) is DENIED

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as moot. Plaintiff’s motion for summary judgment (Docket No. 19) is DENIED as

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premature. He may renew this motion after the parties have completed discovery.

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The Court sets the following briefing schedule. Defendants, who all have consented

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to magistrate judge jurisdiction (Docket No. 24), shall file a dispositive motion, or notice

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regarding such motion, on or before February 25, 2016. The Court further directs that the

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parties are to adhere to the following instructions:
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If defendants elect to file a motion to dismiss on the grounds plaintiff failed

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to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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defendants shall do so in a motion for summary judgment, as required by Albino v. Baca,

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747 F.3d 1162 (9th Cir. 2014).

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2.

Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If any defendant is of the
opinion that this case cannot be resolved by summary judgment, he shall so inform the

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United States District Court
Northern District of California

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Court prior to the date the summary judgment motion is due.

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3.

Plaintiff’s opposition to the dispositive motion shall be filed with the Court

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and served on defendants no later than forty-five (45) days from the date defendants’

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motion is filed.

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4.

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Defendants shall file a reply brief no later than fifteen (15) days after

plaintiff’s opposition is filed.
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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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All communications by the plaintiff with the Court must be served on

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defendants, or defendants’ counsel once counsel has been designated, by mailing a true

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copy of the document to defendants or defendants’ counsel.

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Discovery may be taken in accordance with the Federal Rules of Civil

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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local

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Rule 16-1 is required before the parties may conduct discovery.

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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Court informed of any change of address and must comply with the Court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to

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prosecute pursuant to Federal Rule of Civil Procedure 41(b).
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9.

Extensions of time must be filed no later than the deadline sought to be

extended and must be accompanied by a showing of good cause.
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A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs

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be given ―notice of what is required of them in order to oppose‖ summary judgment

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motions at the time of filing of the motions, rather than when the court orders service of

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process or otherwise before the motions are filed. Woods v. Carey, 684 F.3d 934, 939–41

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(9th Cir. 2012). Defendants shall provide the following notice to plaintiff when they file

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and serves any motion for summary judgment:

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United States District Court
Northern District of California

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The defendants have made a motion for summary judgment by which they
seek to have your case dismissed. A motion for summary judgment under
Rule 56 of the Federal Rules of Civil 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. Generally, summary judgment must be granted when
there is no genuine issue of material fact — that is, if there is no real
dispute about any fact that would affect the result of your case, the party
who asked for summary judgment is entitled to judgment as a matter of
law, which will end your case. When a party you are suing makes a motion
for summary judgment that is properly supported by declarations (or other
sworn testimony), you cannot simply rely on what your complaint says.
Instead, you must set out specific facts in declarations, depositions, answers
to interrogatories, or authenticated documents, as provided in Rule 56(e),
that contradict the facts shown in the defendants’ declarations and
documents and show that there is a genuine issue of material fact for trial.
If you do not submit your own evidence in opposition, summary judgment,
if appropriate, may be entered against you. If summary judgment is
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).

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IT IS SO ORDERED.

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Dated: November 23, 2015
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE P. PACHECO,

Case No. 15-cv-00987-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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LAWRENCE GAMBOA, et al.,
Defendants.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on November 23, 2015, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Steve P. Pacheco ID: AG 8695
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960

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Dated: November 23, 2015

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Susan Y. Soong
Clerk, United States District Court
By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO

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