Gonzales v. City of San Jose, Police Dept. et al

Filing 20

ORDER re 19 MOTION for Summary Judgment filed by Welch Ryan, Le Vos, Asuelo Brian Anthony. Response due by 5/15/2017. Signed by Judge Phyllis J. Hamilton on 4/5/17. (Certificate of Service Attached) (kcS, COURT STAFF) (Filed on 4/5/2017)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ISAURO GONZALES, Plaintiff, 7 8 9 10 Case No. 16-cv-04184-PJH ORDER v. LE VOS, et al., Defendants. United States District Court Northern District of California 11 12 This is a civil rights case brought pro se by a detainee. The court previously 13 denied plaintiff’s motion to appoint counsel and plaintiff then filed a letter stating that he 14 does not know what to do and needs advice on how to proceed. Defendants have since 15 filed a motion for summary judgment and plaintiff has not filed an opposition. The court 16 cannot provide legal advice and as noted in the prior order, plaintiff has presented his 17 claims adequately and the issues are not complex, therefore he has not shown 18 exceptional circumstances to warrant the appointment of counsel. Moreover, after 19 reviewing defendants’ motion for summary judgment, plaintiff does not appear likely to 20 succeed on the merits. While plaintiff states he is on “psych meds”, he has not provided 21 sufficient information to demonstrate his inability to proceed with this action. The court 22 does not assume that any individual with mental health problems or using psychotropic 23 medication is incompetent and unable to litigate a case. 24 Plaintiff will be provided an extension to file an opposition. Failure to file an 25 opposition may result in dismissal of this action. The court also notes that defendants’ 26 motion for summary judgment does not contain a Rand notice to plaintiff. Defendants 27 shall serve plaintiff with another copy of the motion for summary judgment and the 28 required notices. USION CONCLU 1 2 3 4 1. Plaintiff shall fi an opposition to the motion for summary judgment b May 15, ile e by e o m al tion. 2017. Failure to file an opposition may result in dismissa of this act 2. Def fendants sh provide plaintiff an additional copy of the summary judgment hall e 5 mo otion and al serve, on a separa paper, th appropr lso o ate he riate notice or notices required by y 6 Ra v. Rowl and land, 154 F.3d 952, 95 F 53-954 (9th Cir. 1998) (en banc), and Wyatt v. h t 7 Te erhune, 315 F.3d 1108 1120 n. 4 (9th Cir. 20 5 8, 003). See Woods v. C Carey, 684 F.3d 934, 8 940-941 (9th Cir. 2012) (Rand and Wyatt notic must be given at t time mo ces e the otion for 9 summary judg gment or motion to dis m smiss for no onexhaustio is filed, n earlier); Rand at on not ; 10 United States District Court Northern District of California 11 12 13 14 960 (separate paper requirement). e 3. Def fendants must provide notice to th court tha the appro e he at opriate noti ices have been served on plaintiff. o IT IS SO ORDER S RED. Da ated: April 5, 2017 5 15 16 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 17 18 19 \\can ndoak.cand.circ9 9.dcn\data\users\PJHALL\_psp\2 2016\2016_04184 4_Gonzales_v_C City_of_San_Jos se_Police_Dept_ _(PSP)\16-cv04184-PJH-ord.docx x 20 21 22 23 24 25 26 27 28 2 1 2 UNITED STATES D D DISTRICT C COURT 3 NORTHER DISTRIC OF CALI RN CT IFORNIA 4 5 IS SAURO GON NZALES, Case No. 1 16-cv-04184 4-PJH Plaintiff, 6 v. CERTIFIC CATE OF S SERVICE 7 8 LE VOS, et al E l., s. Defendants 9 10 United States District Court Northern District of California 11 I, the un ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S. ee ice Dis strict Court, Northern Di istrict of Cal lifornia. 12 13 14 15 16 That on April 5, 2017, I SERVE a true an correct co n ED nd opy(ies) of th attached, by placing he said copy(ies) in a postage paid envelo addressed to the pers i ope d son(s) herein nafter listed, by dep positing said envelope in the U.S. Mail, or by pla d n M acing said co opy(ies) into an inter-off delivery o ffice y rec ceptacle loca in the Cl ated lerk's office. . 17 18 19 auro Gonzales ID: AYA A300/150540 037 Isa County Jail 701 South Able Street 1 e Mi ilpitas, CA 95035 9 20 21 22 Da ated: April 5, 2017 , 23 24 usan Y. Soon ng Su Cl lerk, United States Distr Court d rict 25 26 27 28 By y:_________ ___________ _______ K Kelly Collins, Deputy Cle to the , erk H Honorable PH HYLLIS J. H HAMILTON N 3

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