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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 JASON MCCORD PATTEN, 12 13 Plaintiff, v. 14 DR. C. STONE, et al., 15 Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) ) 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 18 complaint (“SAC”) pursuant to 42 U.S.C. § 1983. The Court ordered service of Plaintiff’s SAC 19 upon the named Defendants. (Docket No. 107.) A Notice of Lawsuit and a Request for Waiver 20 of Service of Summons were mailed to Defendant Dr. C. Stone. (Docket No. 108.) The 21 documents were unable to be delivered to Defendant Dr. C. Stone because “he no longer works 22 for the California Department of Corrections and Rehabilitation.” (Docket No. 114-1.) Because 23 Plaintiff failed to submit new or additional information about the location of Defendant Dr. C. 24 Stone, said Defendant was dismissed. (Docket No. 147.) 25 Plaintiff has now filed additional information regarding unserved Defendant Dr. C. 26 Stone. (Docket No. 156.) Plaintiff informs the Court that Defendant Dr. C. Stone is also known 27 as Dr. Charles Frank Stone, D.D.S., Lic. #22111. (Id., at p. 2.) Plaintiff further indicates that his 28 Order Vacating Order Dismissing Defendant Dr. C. Stone; Order of Service G:\PRO-SE\LHK\CR.11\Patten057reinstate-serv_Stone.wpd 1 sources indicate that Dr. Charles Frank Stone is employed at San Quentin State Prison. Plaintiff 2 further provides Dr. Stone’s private residence address at 6121 Castle Drive in Oakland, 3 California 94311. 4 In the interest of justice, the Court VACATES the Order dismissing Defendant Dr. C. 5 Stone. (Docket No. 147.) Defendant Dr. C. Stone shall be served at the private residence 6 address provided by Plaintiff. 7 For the foregoing reasons, the Court hereby orders as follows: 8 1. 9 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 10 all attachments thereto (docket no. 102), a copy of the Court’s order filed October 15, 2012 11 (docket no. 107), and a copy of this Order to Dr. Charles Frank Stone, DDS at 6121 Castle 12 Drive, Oakland, CA 94611. 13 2. The Clerk of the Court shall also mail a courtesy copy of this Order to Deputy 14 Attorney General Adriano Hrvatin at 455 Golden Gate Avenue, Suite 11000, San Francisco, 15 CA 94102, and to the Litigation Coordinator at San Quentin State Prison, San Quentin, CA 16 94964. 17 3. Defendant Stone is cautioned that Rule 4 of the Federal Rules of Civil Procedure 18 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 19 Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the Court, on 20 behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear 21 the cost of such service unless good cause is shown for their failure to sign and return the waiver 22 form. If service is waived, this action will proceed as if Defendant had been served on the date 23 that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be required 24 to serve and file an answer before sixty (60) days from the date on which the request for waiver 25 was sent. (This allows a longer time to respond than would be required if formal service of 26 summons is necessary.) Defendant is asked to read the statement set forth at the bottom of the 27 waiver form that more completely describes the duties of the parties with regard to waiver of 28 Order Vacating Order Dismissing Defendant Dr. C. Stone; Order of Service G:\PRO-SE\LHK\CR.11\Patten057reinstate-serv_Stone.wpd 2 1 service of the summons. If service is waived after the date provided in the Notice but before 2 Defendant has been personally served, the Answer shall be due sixty (60) days from the date on 3 which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, 4 whichever is later. 5 4. No later than ninety (90) days from the date of this order, Defendant shall file a 6 motion for summary judgment or other dispositive motion with respect to the cognizable claim 7 in the complaint. 8 a. 9 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), 10 Defendant shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315 11 F.3d 1108, 1119-20 (9th Cir. 2003). 12 b. Any motion for summary judgment shall be supported by adequate factual 13 documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil 14 Procedure. Defendant is advised that summary judgment cannot be granted, nor qualified 15 immunity found, if material facts are in dispute. If Defendant is of the opinion that this 16 case cannot be resolved by summary judgment, he shall so inform the Court prior to the 17 date the summary judgment motion is due. 18 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court and 19 served on Defendant no later than twenty-eight (28) days from the date Defendant’s motion is 20 filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and 21 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must 22 come forward with evidence showing triable issues of material fact on every essential element of 23 his claim). 24 25 26 27 6. Defendant shall file a reply brief no later than fourteen (14) days after Plaintiff’s opposition is filed. 7. 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. 28 Order Vacating Order Dismissing Defendant Dr. C. Stone; Order of Service G:\PRO-SE\LHK\CR.11\Patten057reinstate-serv_Stone.wpd 3 1 8. All communications by the Plaintiff with the Court must be served on Defendant 2 or Defendant’s counsel, by mailing a true copy of the document to Defendants or Defendants’ 3 counsel. 4 5 6 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. 10. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 7 and all parties informed of any change of address and must comply with the Court’s orders in a 8 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 9 pursuant to Federal Rule of Civil Procedure 41(b). 10 11 12 IT IS SO ORDERED. DATED: 7/29/13 LUCY H. KOH United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order of Service; Directings Defendant to File Dispositive Motion or Notice Regarding Such Motion 4 G:\PRO-SE\LHK\CR.11\Patten057reinstate-serv_Stone.wpd

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