Dean v. Contra Costa County Superior Court, Martinez

Filing 21

ORDER re 1 Complaint, filed by Richard Oneal Dean. Signed by Judge ARMSTRONG on 2/28/12. (lrc, COURT STAFF) (Filed on 2/29/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICHARD O'NEAL DEAN,
Plaintiff,

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v.

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OFFICER DAVID HALL, et al.,

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No. C 11-01098 SBA (PR)
ORDER REVIEWING AMENDMENT
TO COMPLAINT; AND REQUIRING
SERVICE ON DEFENDANT TIM
ALLEN

Defendants.
______________________________________/

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United States District Court
For the Northern District of California

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Plaintiff, a state prisoner, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983
in order to recover damages stemming from an alleged illegal search and seizure on October 21,
2005. His motion for leave to proceed in forma pauperis has been granted.
In his complaint, Plaintiff named the following Defendants: Contra Costa Sheriff's Deputies
David Hall and Tim Allen. Plaintiff is seeking monetary damages in the amount of $100,000.
In its Order dated October 28, 2011, the Court found that Plaintiff's allegations that he was
not on parole or probation at the time of the incident, that his "Family Van had a Tempary [sic]
sticker," and that he affirmatively told Defendant Hall he did not consent to a search, raised issues
regarding the reasonableness of Defendant Hall's search of Plaintiff's vehicle as well as whether
Defendant Hall had probable cause to search the vehicle. The Court found that Plaintiff stated a
cognizable Fourth Amendment claim of an illegal search and seizure against Defendant Hall.
However, the Court found that Plaintiff had not alleged facts linking Defendant Allen specifically to
the allegations in the body of the complaint. Plaintiff was directed to correct this pleading
deficiency as to Defendant Allen in an amendment to the complaint.
Thereafter, Plaintiff filed an amendment to the complaint. In his amendment, Plaintiff again
sets forth his allegations relating to the illegal search and seizure on October 21, 2005. He then
alleges that Defendant Allen was present and participated in the allegedly illegal search and seizure.
Read liberally, the allegations in Plaintiff's amendment state a cognizable Fourth Amendment claim
of an illegal search and seizure against Defendant Allen. Therefore, this claim may proceed against
Defendant Allen, who shall abide by the briefing schedule outlined below.

CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

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Plaintiff states a cognizable Fourth Amendment claim of an illegal search and seizure

against Defendants Allen.
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The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint,

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amendment to the complaint, and all attachments thereto (docket nos. 1, 11) and a copy of this

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Order to Contra Costa Sheriff's Deputy Tim Allen. The Clerk of the Court shall also mail copies

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of the amendment to the complaint and this Order to Defendant Hall's Attorney, Monika L. Cooper,

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United States District Court
For the Northern District of California

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Supervising Deputy County Counsel at the Contra Costa County Counsel's Office. Additionally, the

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Clerk shall mail a copy of this Order to Plaintiff.

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3.

Defendant Allen is cautioned that Rule 4 of the Federal Rules of Civil Procedure

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requires them to cooperate in saving unnecessary costs of service of the summons and complaint.

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Pursuant to Rule 4, if Defendant Allen, after being notified of this action and asked by the Court, on

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behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the

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cost of such service unless good cause be shown for their failure to sign and return the waiver form.

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If service is waived, this action will proceed as if Defendant Allen had been served on the date that

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the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant Allen will not be required to

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serve and file an answer before sixty (60) days from the date on which the request for waiver was

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sent. (This allows a longer time to respond than would be required if formal service of summons is

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necessary.) Defendant Allen is asked to read the statement set forth at the foot of the waiver form

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that more completely describes the duties of the parties with regard to waiver of service of the

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summons. If service is waived after the date provided in the Notice but before Defendant Allen has

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been personally served, the Answer shall be due sixty (60) days from the date on which the request

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for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later.

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4.

Defendant Allen shall answer the complaint in accordance with the Federal Rules of

Civil Procedure. The following briefing schedule shall govern dispositive motions in this action:
a.

No later than sixty (60) days from the date their answer is due, Defendant
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Allen shall file a motion for summary judgment or other dispositive motion. The motion shall be

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supported by adequate factual documentation and shall conform in all respects to Federal Rule of

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Civil Procedure 56. If Defendant Allen is of the opinion that this case cannot be resolved by

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summary judgment, they shall so inform the Court prior to the date the summary judgment motion is

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

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b.

Plaintiff's opposition to the dispositive motion shall be filed with the Court

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and served on Defendant Allen no later than sixty (60) days after the date on which Defendant

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Allen's motion is filed. The Ninth Circuit has held that the following notice should be given to pro

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se plaintiffs facing a summary judgment motion:

United States District Court
For the Northern District of California

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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.
See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc).
Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex
Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come forward with
evidence showing triable issues of material fact on every essential element of his claim). Plaintiff is
cautioned that because he bears the burden of proving his allegations in this case, he must be
prepared to produce evidence in support of those allegations when he files his opposition to
Defendant Allen's dispositive motion. Such evidence may include sworn declarations from himself
and other witnesses to the incident, and copies of documents authenticated by sworn declaration.
Plaintiff will not be able to avoid summary judgment simply by repeating the allegations of his

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complaint.
c.

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date Plaintiff's opposition is filed.
d.

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Defendant Allen shall file a reply brief no later than thirty (30) days after the

The motion shall be deemed submitted as of the date the reply brief is due.

No hearing will be held on the motion unless the Court so orders at a later date.
5.

Discovery may be taken in this action in accordance with the Federal Rules of Civil

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Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendant Allen to

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depose Plaintiff and any other necessary witnesses confined in prison.

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6.

All communications by Plaintiff with the Court must be served on Defendant Allen,

United States District Court
For the Northern District of California

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or Defendant Allen's counsel once counsel has been designated, by mailing a true copy of the

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document to Defendant Allen or his counsel.

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7.

It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

informed of any change of address and must comply with the Court's orders in a timely fashion.
8.

Extensions of time are not favored, though reasonable extensions will be granted.

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Any motion for an extension of time must be filed no later than fifteen (15) days prior to the

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deadline sought to be extended.

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IT IS SO ORDERED.
DATED: 2/28/12
SAUNDRA BROWN ARMSTRONG
United States District Judge

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G:\PRO-SE\SBA\CR.11\Dean1098.HALL-Service.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
RICHARD ONEAL DEAN,
Case Number: CV11-01098 SBA

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Plaintiff,
CERTIFICATE OF SERVICE
v.
CONTRA COSTA COUNTY SUPERIOR
COURT et al,
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.

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That on February 29, 2012, 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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Richard Oneal Dean AD5548
California State Prison - San Quentin
San Quentin, CA 94974

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Dated: February 29, 2012

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Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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G:\PRO-SE\SBA\CR.11\Dean1098.HALL-Service.wpd

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