Gonzalez v. Mullen et al

Filing 23

ORDER OF SERVICE FOLLOWING REMAND. Signed by Judge Claudia Wilken on 12/1/2011. (ndr, COURT STAFF) (Filed on 12/1/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 09-00953 CW (PR)

ERIC L. GONZALEZ,
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ORDER OF SERVICE FOLLOWING
REMAND

Plaintiff,
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v.
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P. MULLEN, et al.,
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Defendants.

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United States District Court
For the Northern District of California

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Plaintiff, a state prisoner incarcerated at the Correctional

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Training Facility (CTF), filed this pro se civil rights action

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pursuant to 42 U.S.C. § 1983, alleging the violation of his First,

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Eighth and Fourteenth Amendment rights and seeking injunctive

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relief.

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granted.

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His motion for leave to proceed in forma pauperis has been

By Order filed May 14, 2010, the Court conducted a preliminary

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screening of the allegations in Plaintiff's first amended

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complaint, pursuant to 28 U.S.C. § 1915A.

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that none of Plaintiff's allegations stated a claim for relief

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under § 1983 and dismissed the first amended complaint with

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prejudice.

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The Court determined

On appeal, the Ninth Circuit affirmed the dismissal of all but
two of Plaintiff's claims.

Specifically, the Ninth Circuit held:

[D]ismissal of Gonzalez's Eighth Amendment claim
concerning shower shoes was improper at this early stage
because Gonzalez's allegations that his inability to
obtain shower shoes put him at risk of exposure to
serious bacteria were not frivolous. See Keenan v. Hall,
83 F.3d 1083, 1091 (9th Cir. 1996)(indigent inmates have
the right to personal hygiene supplies).
Dismissal of Gonzalez's equal protection claim
concerning differential treatment of male and female

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inmates was also improper at this early stage because
Gonzalez alleged facts suggesting that prison officials
discriminated against him based on his gender without
penological justification. See [Washington v. Davis, 426
U.S. 229, 238-40 (1976).]

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Docket No. 19 (Memorandum) at 3.

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vacated the Order of dismissal with respect to the above two claims

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and remanded to this Court for further proceedings.

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Accordingly, the Court orders as follows:

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1.

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Consequently, the Ninth Circuit

The Clerk of the Court shall mail a Notice of Lawsuit and

Request for Waiver of Service of Summons, two copies of the Waiver

United States District Court
For the Northern District of California

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of Service of Summons, a copy of the first amended complaint and

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all attachments thereto (docket no. 8) and a copy of this Order to

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CTF Warden Randy Grounds, CTF Appeals Coordinator P. Mullen, and

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Matthew Cate, Secretary of the California Department of Corrections

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and Rehabilitation in Sacramento.

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The Clerk of the Court shall also mail a copy of the complaint

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and a copy of this Order to the State Attorney General's Office in

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San Francisco.

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Order to Plaintiff.

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2.

Additionally, the Clerk shall mail a copy of this

Defendants are cautioned that Rule 4 of the Federal Rules

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of Civil Procedure requires them to cooperate in saving unnecessary

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costs of service of the summons and complaint.

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if Defendants, after being notified of this action and asked by the

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Court, on behalf of Plaintiff, to waive service of the summons,

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fail to do so, they will be required to bear the cost of such

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service unless good cause be shown for their failure to sign and

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return the waiver form.

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proceed as if Defendants had been served on the date that the

Pursuant to Rule 4,

If service is waived, this action will

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waiver is filed, except that pursuant to Rule 12(a)(1)(B),

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Defendants will not be required to serve and file an answer before

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sixty (60) days from the date on which the request for waiver was

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sent.

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if formal service of summons is necessary.)

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to read the statement set forth at the foot of the waiver form that

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more completely describes the duties of the parties with regard to

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waiver of service of the summons.

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date provided in the Notice but before Defendants have been

(This allows a longer time to respond than would be required
Defendants are asked

If service is waived after the

United States District Court
For the Northern District of California

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personally served, the Answer shall be due sixty (60) days from the

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date on which the request for waiver was sent or twenty (20) days

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from the date the waiver form is filed, whichever is later.

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3.

Defendants shall answer the complaint in accordance with

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the Federal Rules of Civil Procedure.

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schedule shall govern dispositive motions in this action:

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a.

The following briefing

No later than ninety (90) days from the date their

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answer is due, Defendants shall file a motion for summary judgment

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or other dispositive motion.

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adequate factual documentation and shall conform in all respects to

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Federal Rule of Civil Procedure 56.

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opinion that this case cannot be resolved by summary judgment, they

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shall so inform the Court prior to the date the summary judgment

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motion is due.

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served on Plaintiff.

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b.

The motion shall be supported by

If Defendants are of the

All papers filed with the Court shall be promptly

Plaintiff's opposition to the dispositive motion

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shall be filed with the Court and served on Defendants no later

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than sixty (60) days after the date on which Defendants' motion is

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filed.

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be given to pro se plaintiffs facing a summary judgment motion:

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United States District Court
For the Northern District of California

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The Ninth Circuit has held that the following notice should

The defendant has 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.
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
defendant's 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 [in favor of the
defendants], your case will be dismissed and there will
be no trial.

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See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en

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banc).

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Plaintiff is advised to read Rule 56 of the Federal Rules of

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Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

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(party opposing summary judgment must come forward with evidence

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showing triable issues of material fact on every essential element

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of his claim).

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burden of proving his allegations in this case, he must be prepared

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to produce evidence in support of those allegations when he files

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his opposition to Defendants' dispositive motion.

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may include sworn declarations from himself and other witnesses to

Plaintiff is cautioned that because he bears the

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Such evidence

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the incident, and copies of documents authenticated by sworn

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declaration.

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simply by repeating the allegations of his complaint.

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c.

Plaintiff will not be able to avoid summary judgment

Defendants shall file a reply brief no later than

thirty (30) days after the date Plaintiff's opposition is filed.

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d.

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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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4.

The motion shall be deemed submitted as of the date
No hearing will be held on the motion

Discovery may be taken in this action in accordance with

United States District Court
For the Northern District of California

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the Federal Rules of Civil Procedure.

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to Rule 30(a)(2) is hereby granted to Defendants to depose

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Plaintiff and any other necessary witnesses confined in prison.

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5.

Leave of the Court pursuant

All communications by Plaintiff with the Court must be

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served on Defendants, or Defendants' 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 case.

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Plaintiff must keep the Court informed of any change of address and

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must comply with the Court's orders in a timely fashion.

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7.

Extensions of time are not favored, though reasonable

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extensions will be granted.

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must be filed no later than fifteen (15) days prior to the deadline

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sought to be extended.

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IT IS SO ORDERED.

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DATED:

Any motion for an extension of time

12/1/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ERIC L. GONZALEZ,

Case Number: CV09-00953 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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P. MULLEN et al,
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Defendant.
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United States District Court
For the 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 December 1, 2011, 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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Eric L. Gonzalez E66196
State Prison Correctional Training Facility
P.O. Box 689
Fox Wing 235 Low
Soledad, CA 93960-0689

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Dated: December 1, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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