Gibbs v. Wood et al
Filing
34
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; ORDER OF SERVICE by Judge Thelton E. Henderson granting 23 Motion to Dismiss, the January 3, 2013 claim against Defendant Wood is dismissed with prejudice as untimely, and the March 15, 2013 c laim against Evans is dismissed with prejudice as untimely. Defendant Evans is dismissed from this action. The case continues with the claim against Defendants Wood, Royal and Milton. Dispositive Motion due by 7/21/2017.. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 4/20/2017)
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
KENNETH GIBBS,
7
Case No.
15-cv-4115-TEH
Plaintiff,
8
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS; ORDER OF
SERVICE
v.
9
T. WOOD, et. al.,
10
Defendants.
Docket No. 23
United States District Court
Northern District of California
11
12
13
Plaintiff Kenneth Gibbs, a state prisoner, filed this pro se
14
action under 42 U.S.C. § 1983.
15
Defendants Wood, Milton, Royal and Evans. 1
16
Wood transferred Plaintiff to a different Administrative
17
Segregation (“Ad. Seg.”) unit in retaliation for filing a
18
grievance; Wood, Milton and Royal placed Plaintiff on C-status in
19
retaliation for filing a grievance; and Evans used excessive
20
force against Plaintiff in retaliation for calling another
21
officer a racist.
22
the grounds that the claim against Wood for transferring
23
Plaintiff and the claim against Evans are barred by the statute
24
of limitations.
25
have filed a reply.
26
motion is GRANTED.
The case proceeds against
Defendants have filed a motion to dismiss on
Plaintiff has opposed the motion, and Defendants
For the reasons that follow, Defendants'
27
28
1
Plaintiff alleges that
Defendant Milton has not been served.
1
I
2
A
3
A motion to dismiss under Federal Rule of Civil Procedure
4
12(b)(6) tests for the legal sufficiency of the claims alleged in
5
the complaint.
6
(9th Cir. 2003).
7
true.
8
legally conclusory statements, not supported by actual factual
9
allegations, need not be accepted.
Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200
All allegations of material fact are taken as
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
However,
See Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009) (courts are not bound to accept as true
11
United States District Court
Northern District of California
10
“a legal conclusion couched as a factual allegation”).
12
plaintiff’s obligation to provide the grounds of his
13
entitle[ment] to relief requires more than labels and
14
conclusions, and a formulaic recitation of the elements of a
15
cause of action will not do.”
16
550 U.S. 544, 555 (2007) (alteration in original) (internal
17
quotation marks omitted).
18
complaint “must be enough to raise a right to relief above the
19
speculative level.”
“A
Bell Atlantic Corp. v. Twombly,
Rather, the allegations in the
Id.
20
B
21
Section 1983 does not contain its own limitations period.
22
The appropriate period is that of the forum state's statute of
23
limitations for personal injury torts.
24
U.S. 261, 276 (1985); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th
25
Cir. 1999); Elliott v. City of Union City, 25 F.3d 800, 802 (9th
26
Cir. 1994).
27
limitations for personal injury actions is the two-year period
28
set forth at California Civil Procedure Code section 335.1 and is
See Wilson v. Garcia, 471
In California, the general residual statute of
2
1
the applicable statute in § 1983 actions.
2
Harris, 370 F.3d 945, 954 (9th Cir. 2004); see also Silva v.
3
Crain, 169 F.3d 608, 610 (9th Cir. 1999) (limitations period for
4
filing § 1983 action in California governed by residual
5
limitations period for personal injury actions in California,
6
which was then one year and was codified in Cal. Civ. Proc. Code
7
§ 340(3)); Cal. Civ. Proc. Code § 335.1 (current codification of
8
residual limitations period, which is now two years; enacted in
9
2002). 2
See Maldonado v.
It is federal law, however, that determines when a cause of
11
United States District Court
Northern District of California
10
action accrues and the statute of limitations begins to run in a
12
§ 1983 action.
13
Elliott, 25 F.3d at 801-02.
14
accrues when the plaintiff knows or has reason to know of the
15
injury that is the basis of the action.
16
at 991-92; Elliott, 25 F.3d at 802.
Wallace v. Kato, 549 U.S. 384, 388 (2007);
Under federal law, a claim generally
See TwoRivers, 174 F.3d
17
18
19
20
2
21
22
23
24
25
26
27
28
California Civil Procedure Code section 352.1 recognizes
imprisonment as a disability that tolls the statute of
limitations when a person is "imprisoned on a criminal charge, or
in execution under the sentence of a criminal court for a term
less than for life." See Cal. Civ. Proc. Code § 352.1(a).
A district court "may take notice of proceedings in other
courts, both within and without the federal judicial system, if
those proceedings have a direct relation to matters at issue."
Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007). The Court
takes judicial notice that Plaintiff is sentenced to life without
the possibility of parole. Request for Judicial Notice (“RJN”),
Docket No. 24, Ex. C; See also Gibbs v. Ayers, Case No. CV 006349, Docket No. 46 at 2 (C.D. Cal. May 17, 2001). Plaintiff is
not entitled to this tolling, nor does he argue for this
additional tolling.
3
1
C
2
Plaintiff previously proceeded with a case in this Court
3
with several claims including the same allegations against these
4
Defendants.
5
0860-TEH (N.D. Cal. Feb. 18, 2016).
6
granted in part Defendants’ motion for summary judgment in Gibbs
7
1 and dismissed claims against these Defendants without prejudice
8
for failure to exhaust.
9
not exhaust administrative remedies until several months after
See Gibbs v. Farley (“Gibbs 1”), Case No. 13-cvOn July 21, 2015, the Court
Gibbs 1, Docket No. 167.
Plaintiff did
commencing the action.
11
United States District Court
Northern District of California
10
administrative remedies for constitutional claims prior to
12
asserting them in a federal civil rights complaint.
13
1997e(a); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).
14
The instant action contains the same allegations against the
A prisoner must exhaust his
42 U.S.C. §
15
same Defendants.
16
this action because the claims were exhausted prior to its
17
filing.
18
However, Plaintiff was able to proceed with
Defendants argue that two of the claims are untimely.
The cause of action against Defendant Wood accrued on
19
January 3, 2013, the date Wood allegedly transferred Plaintiff to
20
a different Ad. Seg. unit.
21
two years later on January 3, 2015.
22
August 12, 2015, and thus is untimely unless Plaintiff is
23
entitled to tolling. 3
24
state's tolling provisions.
25
543-44 (1989); Marks v. Parra, 785 F.2d 1419, 1419-20 (9th Cir.
The statute of limitations expired
The complaint was filed on
A federal court must give effect to a
See Hardin v. Straub, 490 U.S. 536,
26
3
27
28
The Court affords Plaintiff application of the mailbox rule as to
all his relevant filings. Houston v. Lack, 487 U.S. 266, 275-76
(1988) (pro se prisoner filing is dated from the date prisoner
delivers it to prison authorities).
4
1
2
1986).
Plaintiff is entitled to tolling for the time he was
3
administratively exhausting his claims.
4
F.3d 926, 942-43 (9th Cir. 2005).
5
submitted on January 23, 2013 and denied at the final level on
6
June 13, 2013.
7
Plaintiff is entitled to 142 days of tolling, which extends the
8
statute of limitations to May 25, 2015.
9
filed until August 12, 2015; therefore, the claim is untimely.
10
See Brown v. Valoff, 422
The administrative appeal was
Opposition at 20; Docket No. 1-1 at 42-44.
This action was not
The cause of action against Defendant Evans accrued on March
United States District Court
Northern District of California
11
15, 2013, the date Evans allegedly assaulted Plaintiff.
12
statute of limitations expired two years later on March 15, 2015;
13
thus, this action which was not filed until August 12, 2015, is
14
untimely absent tolling.
15
he was exhausting administrative remedies.
16
administrative appeal on March 17, 2013, that was denied on July
17
19, 2013, giving Plaintiff 124 days of tolling.
18
31; Docket No. 1-1 at 19-24.
19
Plaintiff needed to have filed his action by July 17, 2015.
20
action, filed on August 12, 2015, was nearly a month late.
21
The
Plaintiff is entitled to tolling while
He filed an
Opposition at
With these 124 days of tolling,
The
Plaintiff is not entitled to tolling while the previous
22
federal action was pending.
23
prejudice is treated for statute of limitations purposes as if it
24
had never been filed.”
25
(7th Cir. 2000).
26
tolled by filing a complaint that is subsequently dismissed
27
without prejudice.”
28
F.3d 56, 59 (1st Cir. 1998).
“[A] suit dismissed without
Elmore v. Henderson, 227 F.3d 1009, 1011
Conversely, “a prescriptive period is not
Chico-Velez v. Roche Products, Inc., 139
Thus, “[i]n instances where a
5
1
complaint is timely filed and later dismissed, the timely filing
2
of the complaint does not ‘toll’ or suspend the [ ] limitations
3
period.”
4
2006) (per curiam); see also Wood v. Elling Corp., 20 Cal. 3d
5
353, 359 (1977) (quoting 51 Am. Jur. 2d Limitation of Actions §
6
311, at 813) (“‘In the absence of a statute, a party cannot
7
deduct from the period of the statute of limitations. . . the
8
time consumed by the pendency of an action in which he sought to
9
have the matter adjudicated, but which was dismissed without
O'Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir.
prejudice to him.’”).
11
United States District Court
Northern District of California
10
prejudice, meaning that it can be refiled, then the tolling
12
effect of the filing of the suit is wiped out and the statute of
13
limitations is deemed to have continued running from whenever the
14
cause of action accrued, without interruption by that filing.”
15
Elmore, 227 F.3d at 1011.
16
“[I]f the suit is dismissed without
Nor is there a way for this action to “relate back” to the
17
prior action.
18
does not “relate back” to first complaint because it is not an
19
“amendment” but a separate filing); Young v. Rorem, 977 F.2d 594
20
(9th Cir. 1992) (unpublished) (new action cannot “relate back” to
21
original complaint under Federal Rule of Civil Procedure 15(c)
22
because the original action was dismissed and not pending when
23
the new action was filed); Hill v. Prunty, 55 F. App’x 418, 419
24
(9th Cir. 2003) (new complaint alleging same claim does not
25
relate back to prior complaint, even if the prior complaint was
26
dismissed without prejudice).
See O'Donnell, 466 F.3d at 1111 (second complaint
27
28
6
1
2
3
4
D
Plaintiff argues that he is also entitled to equitable
tolling while the prior federal action was pending.
This Court must apply California law governing equitable
5
tolling.
6
California, when a plaintiff pursues identical claims in two
7
different actions, equitable tolling applies during the pendency
8
of the prior action only if it was filed in a different forum;
9
successive identical claims pursued in the same forum are not
Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004).
In
entitled to equitable tolling.
11
United States District Court
Northern District of California
10
Hosp. Med. Ctr., 67 Cal. App. 4th 978, 985 (1998) (“[u]nder
12
equitable tolling, the statute of limitations in one forum is
13
tolled as a claim is being pursued in another forum”).
14
doctrine of equitable tolling . . . only applies where the
15
plaintiff has alternate remedies and has acted in good faith.”
16
Thomas v. Gilliland, 95 Cal. App. 4th 427, 434 (Cal. Ct. App.
17
2002).
18
plaintiff from the bar of a limitations statute when, possessing
19
several legal remedies he, reasonably and in good faith, pursues
20
one designed to lessen the extent of his injuries or damage.’”
21
Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993)
22
(alteration in original) (quoting Addison v. California, 21 Cal.
23
3d 313, 317 (1978)).
24
See Martell v. Antelope Valley
“The
“Under California law, equitable tolling ‘reliev[es]
In contrast, when a plaintiff pursues the same claim in the
25
same forum, as in the instant case, the statute of limitations
26
may be tolled under California law only under a “general
27
equitable rule” known as the “Bollinger rule.”
28
Nat’l Fire Ins. Co., 25 Cal. 2d 399, 410 (1944)).
7
See Bollinger v.
In Bollinger,
“(1) the trial court had erroneously granted the initial nonsuit,
2
(2) dilatory tactics on the part of the defendant had prevented
3
disposition of the first action in time to permit a [timely]
4
second filing . . ., and (3) plaintiff had at all times proceeded
5
in a diligent manner.”
6
Bollinger, 25 Cal. 2d at 406).
7
factors present in Bollinger is essential to an application of
8
the rule stated therein.”
9
Allen v. Greyhound Lines, Inc., 656 F.2d 418, 421 (9th Cir. 1981)
10
(“the California Supreme Court in Wood . . . limited Bollinger to
11
United States District Court
Northern District of California
1
its facts . . . [requiring that] plaintiff must demonstrate the
12
existence of those three factors present in Bollinger”).
13
Wood, 20 Cal. 3d at 360 (citing
“[T]he concurrence of the three
Wood, 20 Cal. 3d at 360; see also
Essential to the application of the Bollinger rule is “the
14
fact that the plaintiff is [otherwise] left without a judicial
15
forum for resolution of the claim . . . attributable to forces
16
outside the control of the plaintiff.”
17
Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1336 (Cal. Ct. App.
18
1994) (citing Wood, 20 Cal. 3d at 361-62).
19
“Bollinger rule” is thus intended to “‘serve the ends of justice
20
where technical forfeitures would unjustifiably prevent a trial
21
on the merits.’”
22
Bollinger, 25 Cal. 2d at 410).
23
Hull v. Cent. Pathology
Tolling under the
Addison, 21 Cal. 3d at 318-19 (quoting
Because Plaintiff proceeds with the same claims in the same
24
forum, Bollinger applies and the Court will look to the three
25
factors in Bollinger.
26
to be entitled to equitable tolling under Bollinger, a plaintiff
27
must demonstrate all three Bollinger factors.
28
F.2d at 421 (“The [California Supreme Court] thus made it clear
California law makes clear that in order
8
See Allen, 656
1
that to avoid the literal language of [section 355], the
2
plaintiff must demonstrate the existence of those three factors
3
present in Bollinger.”); Hull, 28 Cal. App. 4th at 1337
4
(reiterating that the three Bollinger factors are prerequisites
5
expressly required to apply tolling); Wood, 20 Cal. 3d at 360
6
(“the concurrence of the three factors present in Bollinger is
7
essential to an application of the rule”); Dimcheff v. Bay Valley
8
Pizza Inc., 84 F. App’x 981, 982-83 (9th Cir. 2004).
9
With respect to the third Bollinger factor, the Court finds
that Plaintiff proceeded in a diligent manner.
11
United States District Court
Northern District of California
10
first two Bollinger factors, trial court error in granting
12
summary judgment and dilatory defense tactics, are not found in
13
this case.
14
summary judgment for failure to exhaust in Gibbs 1.
15
in Gibbs 1, the law is well settled that a prisoner must exhaust
16
administrative remedies prior to filing a federal civil rights
17
complaint.
18
Defendants that delayed disposition of the first action.
19
Defendants timely filed a motion to dismiss for failure to
20
exhaust that was denied without prejudice to refiling as a
21
summary judgment motion in light of Albino v. Baca, 747 F.3d 1162
22
(9th Cir. 2014).
23
contro, Plaintiff sought to file a second amended complaint,
24
while the motion to dismiss was pending, which delayed
25
proceedings because the second amended complaint included a new
26
claim against a Defendant who needed to be served.
27
opposition to summary judgment in Gibbs 1, Plaintiff argued that
28
by amending the complaint with a new claim, all claims were
However, the
This Court did not erroneously grant the motion for
As described
Nor were there any dilatory tactics on the part of
While this change of law was beyond Plaintiff’s
9
In his
1
exhausted.
2
argument was not correct and it shows that Plaintiff was aware of
3
the exhaustion issue when Defendants filed the original motion to
4
dismiss in Gibbs 1.
5
several more years.
6
Opposition, Gibbs 1, Docket No. 145.
Plaintiff’s
Yet, he continued to litigate the case for
Thus, the Bollinger rule is not applicable to this case
7
because Plaintiff can only demonstrate the existence of one of
8
the three factors.
Therefore, Plaintiff is not entitled to
9
equitable tolling.
See Dimcheff, 84 F. App’x at 983 (tolling not
available when second Bollinger factor not met); Flowers v.
11
United States District Court
Northern District of California
10
Alameda Cnty. Sheriff’s Deputy Bixby, No. 12-cv-3181-YGR, 2015 WL
12
1393582, at *4-8 (N.D. Cal. Mar. 26, 2015) (pro se prisoner not
13
entitled to tolling under Bollinger); Sandoval v. Barneburg, No.
14
12–cv-3007-LHK, 2013 WL 5961087, at *3 (N.D. Cal. Nov. 7, 2013)
15
(finding pro se prisoner not entitled to equitable tolling during
16
pendency of his prior federal lawsuit); Mitchell v. Snowden, No.
17
2:15-cv-1167 TLN AC P, 2016 WL 5407858, at *3-7 (E.D. Cal. June
18
10, 2016)(Bollinger not applicable to pro se prisoner where none
19
of the factors were met); Dawkins v. Woodford, No. 09–cv-1053 JLS
20
(POR), 2012 WL 554371, at *4–5 (S.D. Cal. Feb. 21, 2012)
21
(concluding pro se prisoner was not entitled to equitable tolling
22
during pendency of his prior federal actions, which were
23
dismissed for failing to timely serve defendants).
24
While this is a troubling ruling against a pro se litigant,
25
the Court is bound by federal and state laws.
26
that Plaintiff was informed in October 2013 in Defendants’ motion
27
to dismiss in Gibbs 1 that his claims were not properly
28
exhausted.
The Court notes
Defendants noted that because Plaintiff exhausted his
10
1
claims after filing suit in Gibbs 1 that the action should be
2
dismissed without prejudice.
3
limitations had only been running for seven to nine months, and
4
with tolling, Plaintiff still had 17-19 months to timely file a
5
new case.
6
to litigate Gibbs 1, his filing of a second amended complaint
7
with a new claim, in an attempt to make the unexhausted claims
8
exhausted, further delayed the Court’s adjudication of Gibbs 1.
9
For all these reasons, Plaintiff is not entitled to equitable
10
In October 2013 the statute of
While the Court cannot fault Plaintiff for continuing
tolling. 4
United States District Court
Northern District of California
11
E
12
Equitable estoppel is another doctrine which may apply to
13
extend the limitations period on equitable grounds.
14
535 F.3d at 1051.
15
actions taken by the defendant to prevent a plaintiff from filing
16
suit, sometimes referred to as ‘fraudulent concealment.’”
17
Lukovsky at 1051 (citing Johnson, 314 F.3d at 414).
18
Lukovsky,
Equitable estoppel “focuses primarily on
Under California law, equitable estoppel requires that:
19
(1) the party to be estopped must be apprised
of the facts; (2) that party must intend that
his or her conduct be acted on, or must so
act that the party asserting the estoppel had
a right to believe it was so intended; (3)
the party asserting the estoppel must be
ignorant of the true state of facts; and (4)
the
party
asserting
the
estoppel
must
reasonably rely on the conduct to his or her
injury.
20
21
22
23
24
25
4
26
27
28
The Court notes that it is not clear if the federal equitable
tolling rule mentioned in Lukovsky v. San Francisco, 535 F.3d
1044, 1051 (9th Cir. 2008) and Johnson v. Henderson, 314 F.3d
409, 414 (9th Cir. 2002), applies in § 1983 actions because
Lukovsky did not decide the question, see Lukovsky, 535 F.3d at
1051 & n.5, and Johnson was not a § 1983 action.
11
1
Lukovsky, 535 F.3d at 1051-52 (quoting Honig v. S.F. Planning
2
Dep’t, 127 Cal. App. 4th 520, 529 (2005)).
3
equitable estoppel, or “fraudulent concealment” by defendants,
4
the plaintiff must show “some active conduct by the defendant
5
above and beyond the wrongdoing upon which the plaintiff’s claim
6
is filed.”
7
In order to establish
Id. (internal quotation marks omitted).
Plaintiff seeks equitable estoppel due to his placement in
8
Ad. Seg., prison transfers, harassment, denial of law library
9
access and deprivation of legal property.
10
Opposition at 9-16.
Yet, during this time period, Plaintiff was actively
United States District Court
Northern District of California
11
litigating Gibbs 1, Case No. 13-cv-0860-TEH.
12
period he was also actively litigating the following cases in
13
this Court: Gibbs v. Carson, No. 13-cv-2114 TEH; Gibbs v.
14
Chisman, No. 13-cv-2488 TEH; Gibbs v. Bradford, No. 14-cv-0641
15
TEH, (transferred to the Eastern District and opened as No. 14-
16
cv-0831 TLN-AC.; Gibbs v. Petersen, No. 14-cv-4200 TEH; Gibbs v.
17
Dennehy, No. 14-cv-5301 TEH. 5
18
actively litigate all of these cases, which included dozens of
19
extensive filings, the Court does not find that Defendants
20
prevented Plaintiff from filing suit. 6
During this same
Based on Plaintiff’s ability to
21
22
23
24
25
26
27
28
5
The Court grants Defendants’ request for judicial notice. Docket
No. 32. A district court "may take notice of proceedings in
other courts, both within and without the federal judicial
system, if those proceedings have a direct relation to matters at
issue." Bias, 508 F.3d at 1225.
6
Plaintiff’s claims against Defendants in their official
capacities are dismissed. A suit against a state official in his
official capacity is not a suit against the official but rather a
suit against the official's office, i.e., the state. See Will v.
Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Therefore,
neither a state nor its officials acting in their official
capacities may be sued under § 1983. Id. The case proceeds
against Defendants in their individual capacities.
12
1
II
2
3
For the foregoing reasons, the Court hereby orders as
follows:
4
1.
Defendants’ motion to dismiss (Docket No. 23) is
5
GRANTED.
6
dismissed with prejudice as untimely, and the March 15, 2013
7
claim against Evans is dismissed with prejudice as untimely.
8
Defendant Evans is dismissed from this action.
9
2.
The January 3, 2013 claim against Defendant Wood is
The case continues with the claim against Defendants
Wood, Royal and Milton with respect to placing and keeping
11
United States District Court
Northern District of California
10
Plaintiff on C-status in retaliation for his protected conduct.
12
Those Defendants shall follow the instructions set forth below.
13
In addition, Plaintiff has provided new information to serve
14
Defendant Milton.
15
name and that the Defendant is actually “D. Melton.”
16
3.
Plaintiff notes that he provided the wrong
The Clerk of the Court shall issue summons and the
17
United States Marshal shall serve, without prepayment of fees, a
18
copy of the second amended complaint (Docket No. 11), and a copy
19
of this order upon Defendant D. Melton at Pelican Bay State
20
Prison.
21
4.
22
In order to expedite the resolution of this case, the
Court orders as follows:
23
a.
No later than 91 days from the DATE OF SERVICE OF
24
THIS ORDER, Defendants shall file a motion for summary judgment
25
or other dispositive motion. 7
The motion shall be supported by
26
27
28
7
If there are delays serving Defendant Melton or if Melton is not
represented by the Attorney General’s Office, the Court will
issue a further order.
13
1
adequate factual documentation and shall conform in all respects
2
to Federal Rule of Civil Procedure 56, and shall include as
3
exhibits all records and incident reports stemming from the
4
events at issue.
5
cannot be resolved by summary judgment, he shall so inform the
6
Court prior to the date his summary judgment motion is due.
7
papers filed with the Court shall be promptly served on the
8
plaintiff.
9
b.
If Defendant is of the opinion that this case
All
At the time the dispositive motion is served,
Defendants shall also serve, on a separate paper, the appropriate
11
United States District Court
Northern District of California
10
notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-
12
54 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d
13
1108, 1120 n.4 (9th Cir. 2003).
14
934, 940-41 (9th Cir. 2012) (Rand and Wyatt notices must be given
15
at the time motion for summary judgment or motion to dismiss for
16
nonexhaustion is filed, not earlier); Rand at 960 (separate paper
17
requirement).
18
c.
See Woods v. Carey, 684 F.3d
Plaintiff's opposition to the dispositive motion,
19
if any, shall be filed with the Court and served upon Defendants
20
no later than thirty days from the date the motion was served
21
upon him.
22
- WARNING," which shall be provided to him pursuant to Rand v.
23
Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and
24
Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
25
Plaintiff must read the attached page headed "NOTICE -
If Defendants file a motion for summary judgment claiming
26
that Plaintiff failed to exhaust his available administrative
27
remedies as required by 42 U.S.C. § 1997e(a), plaintiff should
28
take note of the attached page headed "NOTICE -- WARNING
14
1
(EXHAUSTION)," which shall be provided to him as required by
2
Wyatt v. Terhune, 315 F.3d 1108, 1120 n.4 (9th Cir. 2003).
3
d.
If Defendants wish to file a reply brief, they
4
shall do so no later than fifteen days after the opposition is
5
served upon them.
6
e.
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the reply brief is due.
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unless the court so orders at a later date.
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5.
The motion shall be deemed submitted as of the date
No hearing will be held on the motion
All communications by Plaintiff with the Court must be
served on Defendant, or Defendants’ counsel, by mailing a true
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United States District Court
Northern District of California
10
copy of the document to Defendants or Defendants' counsel.
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6.
Discovery may be taken in accordance with the Federal
13
Rules of Civil Procedure.
14
Rule of Civil Procedure 30(a)(2) is required before the parties
15
may conduct discovery.
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7.
No further court order under Federal
It is Plaintiff's responsibility to prosecute this case.
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Plaintiff must keep the court informed of any change of address
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by filing a separate paper with the clerk headed “Notice of
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Change of Address.”
20
in a timely fashion.
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dismissal of this action for failure to prosecute pursuant to
22
Federal Rule of Civil Procedure 41(b).
23
24
He also must comply with the court's orders
Failure to do so may result in the
IT IS SO ORDERED.
Dated: 4/20/2017
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________________________
THELTON E. HENDERSON
United States District Judge
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G:\PRO-SE\TEH\CR.15\Gibbs4115.mtd.docx
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15
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