Shotwell v. Brandt et al

Filing 31

ORDER by Judge Claudia Wilken DENYING PLAINTIFF'S 29 MOTION FOR DEFAULT JUDGMENT; DIRECTING CLERK OF COURT TO PROCEED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(c)(3); DENYING AS MOOT PLAINTIFF'S 19 MOTION FOR SERVICE BY THE U.S. MARSHAL. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 3/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MANUEL E. SHOTWELL,

No. C 10-05232 CW (PR)
ORDER DENYING PLAINTIFF'S
MOTION FOR DEFAULT JUDGMENT;
DIRECTING CLERK OF COURT TO
PROCEED PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE
4(c)(3); DENYING AS MOOT
PLAINTIFF'S MOTION FOR SERVICE
BY THE U.S. MARSHAL

Plaintiff,

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v.

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S. BRANDT, et al.,

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Defendants.
________________________________/

(Docket nos. 19 & 29)

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Plaintiff, a state prisoner currently incarcerated at Salinas
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Valley State Prison (SVSP), filed the instant pro se civil rights
United States District Court
For the Northern District of California

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action pursuant to 42 U.S.C. § 1983.
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On December 15, 2010, the Court determined that Plaintiff
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qualified to proceed in forma pauperis (IFP) and, accordingly,
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granted him IFP status.

On December 16, 2010, however, Plaintiff

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paid the full filing fee of $350.00.

The Court consequently

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vacated his IFP status and ordered him to serve all of the named
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Defendants or face dismissal of his claims against those
Defendants.
I.

Plaintiff's Motion for Default Judgment
On December 29, 2011, Plaintiff filed a motion for default

judgment as to all Defendants.

In his motion, he states that

Defendants were served with the summons and complaint in this case
on September 8, 2011, and that they have not yet responded.

In

support of his motion, he attaches signed certified mail receipts
dated September 8, 2011.
Plaintiff argues that because Defendants have not timely
appeared in this action after having been served, he is entitled to
a default judgment against them.

The Court has ascertained,

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however, that no Defendant has notified the California Attorney

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General's Office of the pendency of this action or that he has been

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served with the summons and complaint; no Defendant is represented

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by the California Attorney General's Office at this time.

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The reasonable inference to be drawn from the above is that

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Plaintiff's attempt to serve Defendants was unsuccessful.

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Accordingly, Plaintiff's application for the entry of default

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judgment is DENIED as premature.

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II.

United States District Court
For the Northern District of California

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Plaintiff's Request for Court-Ordered Service
In various filings that pre-date his motion for default

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judgment, Plaintiff requests that the Court direct either the

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United States Marshal or other Court personnel to assist him in

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effectuating service of process.

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requests.

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The Court hereby addresses those

Under 28 U.S.C. § 1915, the Court may authorize a party to

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proceed IFP in an action or proceeding if the party submits an

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affidavit showing the person is unable to pay such fees.

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§ 1915(a)(1).

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directed to serve all process in the case.

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such authorization is denied, the plaintiff is not automatically

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entitled to have the Marshal serve Defendants.

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4(c)(2).

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Court has discretion, at the plaintiff's request, to order that

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service by made by the Marshal or by a person specially appointed

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by the Court.

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28 U.S.C.

If such authorization is granted, the Marshal is
Id. § 1915(c),(d).

If

Fed. R. Civ. P.

However, even if a plaintiff is not proceeding IFP, the

Fed. R. Civ. P. 4(c)(3).

This action has been pending since November of 2010.

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Plaintiff, an incarcerated state prisoner, appears to have

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exercised diligence in attempting to serve Defendants but has been
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unable to effect service himself.

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exercise its discretion under Federal Rule of Civil Procedure

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4(c)(3) and direct the Clerk of the Court to attempt to serve

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Defendants, as set forth in the Conclusion of this Order.

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The Court, therefore, will

In light of the above, Plaintiff's motion for service by the
Marshal is DENIED as moot.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

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

United States District Court
For the Northern District of California

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

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of Service of Summons, a copy of the complaint and all attachments

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thereto (docket no. 1) and a copy of this Order to SVSP Lieutenants

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S. Brandt, L. Negron and R.A. Kessler; SVSP Sergeant B. Petersen;

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SVSP Warden G. Lewis; SVSP Appeals Coordinators E. B. Jones, P.

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Nickerson and E. Medina; SVSP Correctional Officers C. Santos, G.

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Gudino, S. Celaya and D. Garcia; SVSP Captain W. Muniz and the

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Chief of the Inmate Appeals Branch in Sacramento, N. Grannis.

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

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complaint and a copy of this Order to the California Attorney

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General's Office.

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this Order to Plaintiff.

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2.

Additionally, the Clerk shall mail a copy of

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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Pursuant to Rule 4,

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return the waiver form.

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

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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

If service is waived, this action will

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

United States District Court
For the Northern District of California

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waiver of service of the summons.

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date provided in the Notice but before Defendants have been

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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.

If service is waived after the

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

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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United States District Court
For the Northern District of California

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The Ninth Circuit has held that the following notice should be
given to pro se plaintiffs facing a summary judgment motion:
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.

Plaintiff is cautioned that because he bears the

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Such evidence

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may include sworn declarations from himself and other witnesses to

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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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Plaintiff will not be able to avoid summary judgment

c.

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.

United States District Court
For the Northern District of California

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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

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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.

Any motion for an extension of time

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This Order terminates Docket nos. 19 and 29.

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IT IS SO ORDERED.

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DATED: 3/19/2012
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE
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