Lee v. McGucken

Filing 10

ORDER OF SERVICE OF PROCESS AND SCHEDULING. Habeas Answer or Dispositive Motion due by 3/8/2019. Signed by Judge Haywood S. Gilliam, Jr. on 12/7/2018. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 12/7/2018)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
10

PERRIS J. LEE,
Plaintiff,

United States District Court
Northern District of California

11

ORDER FOR SERVICE OF PROCESS
AND SCHEDULING

v.

12
13

Case No. 18-cv-03689-HSG (PR)

I. MCGUCKEN,
Defendant.

14
15
16

Plaintiff, an inmate at California State Prison–Sacramento, proceeding pro se, filed this

17

civil rights action pursuant to 42 U.S.C. § 1983 against officials and staff at Salinas Valley State

18

Prison (“SVSP”), where he was previously incarcerated. On October 30, 2018, the Court

19

reviewed the complaint and found that, liberally construed, it stated a cognizable Eighth

20

Amendment claim against SVSP defendants E. Knox, Curry III, F. Medina, J. Streeper, H. Gasca,

21

and I. McGuckin. All other claims were dismissed with leave to amend. Plaintiff has notified the

22

Court that he does not wish to file an amended complaint and elects to proceed only on the Eighth

23

Amendment claim. See Dkt. No. 9. Accordingly, to move this action toward resolution, the Court

24

now orders:

25

1.

The Clerk shall issue summons and the United States Marshal shall serve, without

26

prepayment of fees, a copy of the complaint (Dkt. No. 1), a copy of the Court’s October 30, 2018

27

screening order (Dkt. No. 7), and a copy of this order upon E. Knox, Curry III, F. Medina, J.

28

Streeper, H. Gasca, and I. McGuckin at Salinas Valley State Prison.

The Clerk shall also mail a courtesy copy of the complaint, the October 30, 2018 screening

1
2

order, and this order to the California Attorney General’s Office.
2.

3

In order to expedite the resolution of this case, the Court orders as follows:
a.

4

No later than 91 days from the date this order is filed, defendants must file

5

and serve a motion for summary judgment or other dispositive motion. A motion for summary

6

judgment also must be accompanied by a Rand notice so that plaintiff will have fair, timely and

7

adequate notice of what is required of him in order to oppose the motion. Woods v. Carey, 684

8

F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th

9

Cir. 1998) must be served concurrently with motion for summary judgment).1
If defendants are of the opinion that this case cannot be resolved by summary judgment,

10

United States District Court
Northern District of California

11

defendants must so inform the Court prior to the date the motion is due.
b.

12

Plaintiff’s opposition to the summary judgment or other dispositive motion

13

must be filed with the Court and served upon defendants no later than 28 days from the date the

14

motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment

15

provided later in this order as he prepares his opposition to any motion for summary judgment.
c.

16

Defendants shall file a reply brief no later than 14 days after the date the

17

opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No

18

hearing will be held on the motion.
3.

19

Plaintiff is advised that a motion for summary judgment under Rule 56 of the

20

Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must

21

do in order to oppose a motion for summary judgment. Generally, summary judgment must be

22

granted when there is no genuine issue of material fact – that is, if there is no real dispute about

23

any fact that would affect the result of your case, the party who asked for summary judgment is

24

entitled to judgment as a matter of law, which will end your case. When a party you are suing

25
26
27
28

1

If defendants assert that plaintiff failed to exhaust his available administrative remedies as
required by 42 U.S.C. § 1997e(a), defendants must raise such argument in a motion for summary
judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014)
(en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that
failure to exhaust available administrative remedies under the Prison Litigation Reform Act,
should be raised by a defendant as an unenumerated Rule 12(b) motion).
2

1

makes a motion for summary judgment that is properly supported by declarations (or other sworn

2

testimony), you cannot simply rely on what your complaint says. Instead, you must set out

3

specific facts in declarations, depositions, answers to interrogatories, or authenticated documents,

4

as provided in Rule 56(e), that contradict the facts shown in the defendants’ declarations and

5

documents and show that there is a genuine issue of material fact for trial. If you do not submit

6

your own evidence in opposition, summary judgment, if appropriate, may be entered against you.

7

If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v.

8

Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).

9
10

United States District Court
Northern District of California

11

(The Rand notice above does not excuse defendants’ obligation to serve said notice again
concurrently with a motion for summary judgment. Woods, 684 F.3d at 939).
4.

All communications by plaintiff with the Court must be served on defendants’

12

counsel by mailing a true copy of the document to defendants’ counsel. The Court may disregard

13

any document which a party files but fails to send a copy of to his opponents. Until defendants’

14

counsel has been designated, plaintiff may mail a true copy of the document directly to

15

defendants, but once defendants are represented by counsel, all documents must be mailed to

16

counsel rather than directly to defendants.

17

5.

Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

18

No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required

19

before the parties may conduct discovery.

20

6.

Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the

21

Court 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 pursuant

23

to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every

24

pending case every time he is moved to a new facility.

25
26
27
28

7.

Any motion for an extension of time must be filed no later than the deadline sought

to be extended and must be accompanied by a showing of good cause.
8.

Plaintiff is cautioned that he must include the case name and case number for this

case on any document he submits to the Court for consideration in this case.
3

1

9.

The Clerk shall add E. Knox, Curry III, F. Medina, J. Streeper, and H. Gasca as

2

defendants on the docket in this action.

3

IT IS SO ORDERED.

4

Dated: 12/7/2018

5
6
HAYWOOD S. GILLIAM, JR.
United States District Judge

7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4