Berringer v. Meza et al

Filing 14

ORDER OF SERVICE AFTER AMENDMENT. Signed by Judge Phyllis J. Hamilton on 11/10/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/10/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 ANTHONY S. BERRINGER, Plaintiff, 8 vs. ORDER OF SERVICE AFTER AMENDMENT 10 Correctional Officers F. MEZA, M. SANDOVAL, E. DELROSARIO, and 11 C. LOPEZ, For the Northern District of California United States District Court 9 No. C 11-1884 PJH (PR) 12 Defendants. / 13 14 This is a civil rights case filed pro se by a state prisoner. The court noted in the 15 initial renew order that plaintiff had stated a claim against defendants Meza, Sandoval, and 16 Lopez. The claim against Delrosario was said to not make sense and was dismissed for 17 plaintiff to provide further detail. In the amended complaint he contends that Delrosario 18 failed to check a system for determining who an inmate’s enemies might be before allowing 19 inmate Hunter into plaintiff’s cell; Hunter was on plaintiff’s enemies list and attacked 20 plaintiff. This is sufficient to state a claim against Delrosario. 21 CONCLUSION 22 1. The clerk shall issue summons and serve, without prepayment of fees, copies of 23 the file, including copies of this order, upon the following defendants: Correctional Officers 24 F. Meza, M. Sandoval, E. Delrosario, and C. Lopez. Plaintiff states that these defendants 25 can be found at Salinas Valley State Prison in Soledad. 26 2. In order to expedite the resolution of this case, the court orders as follows: 27 a. Defendants shall file a motion for summary judgment or other dispositive 28 motion within sixty days of the date this order is entered. If defendants are of the opinion 1 that this case cannot be resolved by summary judgment, they shall so inform the court prior 2 to the date their summary judgment motion is due. 3 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 4 court and served upon defendants no later than thirty days from the date the motion was 5 served upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” 6 which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 7 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 8 9 If defendants file an unenumerated motion to dismiss claiming that plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” 11 For the Northern District of California United States District Court 10 which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th 12 Cir. 2003). 13 14 15 16 17 c. If defendants wish to file a reply brief, they shall do so no later than fifteen days after service of the opposition. d. 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. 3. All communications by plaintiff with the court must be served on defendants, or 18 defendants' counsel once counsel has been designated, by mailing a true copy of the 19 document to defendants or defendants' counsel. 20 4. It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 21 informed of any change of address and must comply with the court's orders in a timely 22 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 23 pursuant to Federal Rule of Civil Procedure 41(b). 24 IT IS SO ORDERED. 25 Dated: November 10, 2011. PHYLLIS J. HAMILTON United States District Judge 26 27 28 P:\PRO-SE\PJH\CR.11\BERRINGER1884.SERVE.wpd 2 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. judgment. Generally, summary judgment must be granted when there is no genuine issue 7 of material fact--that is, if there is no real dispute about any fact that would affect the result 8 of your case, the party who asked for summary judgment is entitled to judgment as a matter 9 of law, which will end your case. When a party you are suing makes a motion for summary 10 judgment that is properly supported by declarations (or other sworn testimony), you cannot 11 For the Northern District of California Rule 56 tells you what you must do in order to oppose a motion for summary 6 United States District Court 5 simply rely on what your complaint says. Instead, you must set out specific facts in 12 declarations, depositions, answers to interrogatories, or authenticated documents, as 13 provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and 14 documents and show that there is a genuine issue of material fact for trial. If you do not 15 submit your own evidence in opposition, summary judgment, if appropriate, may be entered 16 against you. If summary judgment is granted, your case will be dismissed and there will be 17 no trial. 18 19 20 21 22 NOTICE -- WARNING (EXHAUSTION) If defendants file an unenumerated motion to dismiss for failure to exhaust, they are seeking to have your case dismissed. If the motion is granted it will end your case. You have the right to present any evidence you may have which tends to show that 23 you did exhaust your administrative remedies. Such evidence may be in the form of 24 declarations (statements signed under penalty of perjury) or authenticated documents, that 25 is, documents accompanied by a declaration showing where they came from and why they 26 are authentic, or other sworn papers, such as answers to interrogatories or depositions. 27 28 If defendants file a motion to dismiss and it is granted, your case will be dismissed and there will be no trial. 3

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