Tolbert v. Colley et al

Filing 62

ORDER INSTRUCTING CLERK TO MAIL WAIVER OF SUMMONS FORMS FOR DEFENDANTS CANTANDO AND PERKINSON; DISMISSING DEFENDANT CONTRA COSTA COUNTY DETENTION HEALTH SERVICE; SCHEDULING MOTION FOR SUMMARY JUDGMENT. Signed by Judge Jacqueline Scott Corley on 2/6/2024. (ahm, COURT STAFF) (Filed on 2/6/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOEL TOLBERT,
Plaintiff,

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v.

United States District Court
Northern District of California

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ANTIOCH POLICE DEPARTMENT, et al.,

Case No. 22-cv-02026-JSC
ORDER INSTRUCTING CLERK TO
MAIL WAIVER OF SUMMONS
FORMS FOR DEFENDANTS
CANTANDO AND PERKINSON;
DISMISSING DEFENDANT CONTRA
COSTA COUNTY DETENTION
HEALTH SERVICE; SCHEDULING
MOTION FOR SUMMARY
JUDGMENT

Defendants.

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Plaintiff, a California prisoner proceeding without being represented by an attorney, filed

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this civil rights complaint under 42 U.S.C. § 1983 against the Antioch Police Department

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(“APD”), APD Chief Allen Cantando, APD Officer James Colley, APD Officer James Perkinson,

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and the Contra Cost County Detention Health Service (CCCDHS). Summonses issued to

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Defendants Cantando, Perkinson, and CCCDHS were returned by the Marshal unexecuted. (ECF

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Nos. 13, 15, 16.) The motion to dismiss by the served Defendants was denied on November 11,

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2023. (ECF No. 56.)

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With respect to Defendants Perkinson and Cantando, counsel for the served Defendants

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(APD and Colley) have advised the Court it has been authorized to execute and return a waiver of

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summons under Rule 4(d) of the Federal Rules of Civil Procedure on behalf of Defendants

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Perkinson and Cantando. (ECF No. 57.) Accordingly, the Clerk is instructed to mail waiver of

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summons forms for Defendants Perkinson and Cantando to counsel for Defendants APD and

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Colley. The executed waiver of summons forms shall be filed on or before March 5, 2024, and

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Perkinson and Cantando shall file an answer to the second amended complaint in accordance with

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the Federal Rules of Civil Procedure.1
As for Defendant CCCDHS, on November 11, 2023, because well more than 120 days had

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passed since the complaint was filed and Plaintiff had not served this Defendant as required by

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Rule 4(m) of the Federal Rules of Civil Procedure or provided the Court with an address where the

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Marshal could effectuate service, the Court instructed Plaintiff as follows: “On or before

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December 29, 2023, Plaintiff shall provide the Court with a current address for Defendant

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CCCDHS to allow for service. Failure to do so will result in dismissal of the claims against

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CCCDHS without prejudice.” (ECF No. 56 at 14:25-27). Plaintiff has not provided the Court

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with a current address for CCCDHS. Accordingly, the claims against Defendant CCCDHS are

United States District Court
Northern District of California

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DISMISSED under Rule 4(m) without prejudice.

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Plaintiff filed a copy of his Request for Production of Documents. (ECF No. 60.) Plaintiff

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is advised that discovery requests are only served on parties, they are not filed with the court. See,

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e.g., Fed. R. Civ. P. 34(a) (“A party may serve on any other party” a request for production of

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documents) (emphasis added). Plaintiff shall not file any further discovery requests with the

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court.

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To facilitate the resolution of this case, the Court orders as follows:

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1. No later than May 6, 2024, Defendants shall file a motion for summary judgment. The

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motion shall be supported by adequate factual documentation and shall conform in all respects to

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Federal Rule of Civil Procedure 56 and shall include as exhibits all records and incident reports

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stemming from the events at issue. If Defendants are of the opinion that this case cannot be

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resolved by summary judgment, they shall so inform the Court prior to the date the summary

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judgment motion is due. All papers filed with the Court shall be promptly served on Plaintiff.

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2. At the time the summary judgment motion is served, Defendants shall also serve, on a

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separate paper, the appropriate notice required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th

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Cir. 1998) (en banc). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012).
3. Plaintiff's opposition to the summary judgment motion, if any, shall be filed with the

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Defendants APD and Colley have already filed an answer to the second amended complaint.
(ECF No. 59.)
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Court and served upon Defendants no later than June 10, 2024. Plaintiff must read the attached

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page headed “NOTICE -- WARNING,” which is provided to him pursuant to Rand v. Rowland,

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154 F.3d 952, 953-954 (9th Cir. 1998) (en banc).

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4. Defendants shall file a reply brief no later than 14 days after the opposition is filed.

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5. The motion shall be deemed submitted as of the date the reply brief is due. No hearing

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will be held on the motion unless the Court so orders at a later date.
IT IS SO ORDERED.
Dated: February 6, 2024

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JACQUELINE SCOTT CORLEY
United States District Judge

United States District Court
Northern District of California

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