Patten v. Brown

Filing 160

ORDER VACATING ORDER DISMISSING DEFENDANT DR. C. STONE; ORDER OF SERVICE Dispositive Motion due by 10/28/2013.. Signed by Judge Lucy H. Koh on 7/29/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 7/29/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JASON MCCORD PATTEN,

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Plaintiff,
v.

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DR. C. STONE, et al.,
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Defendants.
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No. C 11-2057 LHK (PR)
ORDER VACATING ORDER
DISMISSING DEFENDANT DR.
C. STONE; ORDER OF SERVICE

Plaintiff, a state prisoner proceeding pro se, filed a second amended civil rights

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complaint (“SAC”) pursuant to 42 U.S.C. § 1983. The Court ordered service of Plaintiff’s SAC

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upon the named Defendants. (Docket No. 107.) A Notice of Lawsuit and a Request for Waiver

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of Service of Summons were mailed to Defendant Dr. C. Stone. (Docket No. 108.) The

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documents were unable to be delivered to Defendant Dr. C. Stone because “he no longer works

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for the California Department of Corrections and Rehabilitation.” (Docket No. 114-1.) Because

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Plaintiff failed to submit new or additional information about the location of Defendant Dr. C.

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Stone, said Defendant was dismissed. (Docket No. 147.)

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Plaintiff has now filed additional information regarding unserved Defendant Dr. C.

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Stone. (Docket No. 156.) Plaintiff informs the Court that Defendant Dr. C. Stone is also known

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as Dr. Charles Frank Stone, D.D.S., Lic. #22111. (Id., at p. 2.) Plaintiff further indicates that his

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Order Vacating Order Dismissing Defendant Dr. C. Stone; Order of Service
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sources indicate that Dr. Charles Frank Stone is employed at San Quentin State Prison. Plaintiff

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further provides Dr. Stone’s private residence address at 6121 Castle Drive in Oakland,

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California 94311.

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In the interest of justice, the Court VACATES the Order dismissing Defendant Dr. C.

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Stone. (Docket No. 147.) Defendant Dr. C. Stone shall be served at the private residence

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address provided by Plaintiff.

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For the foregoing reasons, the Court hereby orders as follows:

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1.

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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 SAC and

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all attachments thereto (docket no. 102), a copy of the Court’s order filed October 15, 2012

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(docket no. 107), and a copy of this Order to Dr. Charles Frank Stone, DDS at 6121 Castle

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Drive, Oakland, CA 94611.

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2.

The Clerk of the Court shall also mail a courtesy copy of this Order to Deputy

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Attorney General Adriano Hrvatin at 455 Golden Gate Avenue, Suite 11000, San Francisco,

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CA 94102, and to the Litigation Coordinator at San Quentin State Prison, San Quentin, CA

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94964.

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3.

Defendant Stone 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, 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

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

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

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

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

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

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summons is necessary.) Defendant is asked to read the statement set forth at the bottom of the

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

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Order Vacating Order Dismissing Defendant Dr. C. Stone; Order of Service
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service of the summons. If service is waived after the date provided in the Notice but before

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

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which the request for waiver was sent or twenty (20) days from the date the waiver form is filed,

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whichever is later.

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4.

No later than ninety (90) days from the date of this order, Defendant shall file a

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motion for summary judgment or other dispositive motion with respect to the cognizable claim

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in the complaint.

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a.

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If Defendant elects to file a motion to dismiss on the grounds that Plaintiff

failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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Defendant shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315

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F.3d 1108, 1119-20 (9th Cir. 2003).

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b.

Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendant is advised that summary judgment cannot be granted, nor qualified

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immunity found, if material facts are in dispute. If Defendant is of the opinion that this

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case cannot be resolved by summary judgment, he shall so inform the Court prior to the

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date the summary judgment motion is due.

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5.

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

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served on Defendant no later than twenty-eight (28) days from the date Defendant’s motion is

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filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and

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Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must

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come forward with evidence showing triable issues of material fact on every essential element of

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his claim).

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6.

Defendant shall file a reply brief no later than fourteen (14) days after Plaintiff’s

opposition is filed.
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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.

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Order Vacating Order Dismissing Defendant Dr. C. Stone; Order of Service
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8.

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

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or Defendant’s counsel, by mailing a true copy of the document to Defendants or Defendants’

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counsel.

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9.

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

No further Court order is required before the parties may conduct discovery.
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It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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and all parties informed of any change of address and must comply with the Court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

7/29/13
LUCY H. KOH
United States District Judge

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Order of Service; Directings Defendant to File Dispositive Motion or Notice Regarding Such Motion
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