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)

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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. 7 the reply brief is due. 8 unless the court so orders at a later date. 9 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 11 United States District Court Northern District of California 10 copy of the document to Defendants or Defendants' counsel. 12 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. 16 7. No further court order under Federal It is Plaintiff's responsibility to prosecute this case. 17 Plaintiff must keep the court informed of any change of address 18 by filing a separate paper with the clerk headed “Notice of 19 Change of Address.” 20 in a timely fashion. 21 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 25 ________________________ THELTON E. HENDERSON United States District Judge 26 27 G:\PRO-SE\TEH\CR.15\Gibbs4115.mtd.docx 28 15

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