Williams v. Perez et al

Filing 36

ORDER OF SERVICE; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion. Dispositive Motion due by 4/22/2013. Habeas Answer due by 3/22/2013. Signed by Judge Ronald M. Whyte on 1/22/13. (jg, COURT STAFF) (Filed on 1/22/2013)

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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 JAMES EDWARD WILLIAMS, 12 Plaintiff, 13 14 ) ) ) ) ) ) ) ) ) ) v. R. PEREZ, et al., 15 Defendants. No. C 12-1691 RMW(PR) ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION 16 Plaintiff, a state prisoner proceeding pro se, filed a second amended civil rights complaint 17 pursuant to 42 U.S.C. § 1983. For the reasons stated below, the court orders service upon 18 defendants. 19 DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a prisoner 22 seeks redress from a governmental entity or officer or employee of a governmental entity. See 23 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss 24 any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or 25 seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), 26 (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police 27 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 28 Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion G:\PRO-SE\SJ.Rmw\CR.12\Williams691srv2.wpd 1 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 2 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 3 the alleged deprivation was committed by a person acting under the color of state law. West v. 4 Atkins, 487 U.S. 42, 48 (1988). 5 B. 6 Plaintiff’s Claims Plaintiff alleges that, on March 29, 2011, Correctional Officers R. Perez and J. Juarez 7 used excessive force upon him. Plaintiff further alleges that Correctional Officers J. Juarez, G. 8 Collier, and Canchola, and Lt. M. Ross exhibited deliberate indifference to plaintiff’s safety by 9 failing to intervene. Liberally construed, plaintiff has alleged cognizable claims that defendants 10 violated his Eighth Amendment rights. 11 CONCLUSION 12 For the foregoing reasons, the court hereby orders as follows: 13 1. The clerk of the court shall mail a Notice of Lawsuit and Request for Waiver of 14 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the second 15 amended complaint and all attachments thereto (docket no. 33), and a copy of this order to 16 Correctional Officer G. Collier, Correctional Officer Canchola, and Lt. M. Ross, Watch 17 Commander, at Salinas Valley State Prison. The clerk shall also serve a copy of this order on 18 plaintiff and mail a courtesy copy of the second amended complaint to the California Attorney 19 General’s Office. 20 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 21 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 22 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the court, on 23 behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear 24 the cost of such service unless good cause is shown for their failure to sign and return the waiver 25 form. If service is waived, this action will proceed as if defendants had been served on the date 26 that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendants will not be required 27 to serve and file an answer before sixty (60) days from the date on which the request for waiver 28 was sent. (This allows a longer time to respond than would be required if formal service of Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion 2 G:\PRO-SE\SJ.Rmw\CR.12\Williams691srv2.wpd 1 summons is necessary.) Defendants are asked to read the statement set forth at the bottom of the 2 waiver form that more completely describes the duties of the parties with regard to waiver of 3 service of the summons. If service is waived after the date provided in the Notice but before 4 defendants have been personally served, the Answer shall be due sixty (60) days from the date 5 on which the request for waiver was sent or twenty (20) days from the date the waiver form is 6 filed, whichever is later. 7 3. No later than ninety (90) days from the date of this order, defendants shall file a 8 motion for summary judgment or other dispositive motion with respect to the cognizable claim 9 in the complaint. 10 a. If defendants elect to file a motion to dismiss on the grounds that plaintiff 11 failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), 12 defendants shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315 13 F.3d 1108, 1119-20 (9th Cir. 2003). 14 b. Any motion for summary judgment shall be supported by adequate factual 15 documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil 16 Procedure. Defendants are advised that summary judgment cannot be granted, nor 17 qualified immunity found, if material facts are in dispute. If defendants are of the opinion 18 that this case cannot be resolved by summary judgment, they shall so inform the court 19 prior to the date the summary judgment motion is due. 20 4. Plaintiff’s opposition to the dispositive motion shall be filed with the court and 21 served on defendants no later than twenty-eight (28) days from the date defendants’ motion is 22 filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex 23 Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come 24 forward with evidence showing triable issues of material fact on every essential element of his 25 claim). 26 27 28 5. Defendants shall file a reply brief no later than fourteen (14) days after plaintiff’s opposition is filed. 6. The motion shall be deemed submitted as of the date the reply brief is due. No Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion 3 G:\PRO-SE\SJ.Rmw\CR.12\Williams691srv2.wpd 1 2 hearing will be held on the motion unless the court so orders at a later date. 7. All communications by the plaintiff with the court must be served on defendants 3 or defendants’ counsel, by mailing a true copy of the document to defendants or defendants’ 4 counsel. 5 6 7 8. 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. 9. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 8 and all parties informed of any change of address and must comply with the court’s orders in a 9 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 10 11 12 13 pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. DATED: RONALD M. WHYTE United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order of Service; Directing Defendants to File Disposition Motion 4 G:\PRO-SE\SJ.Rmw\CR.12\Williams691srv2.wpd UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JAMES EDWARD WILLIAMS, Case Number: CV12-01691 RMW Plaintiff, CERTIFICATE OF SERVICE v. R. PEREZ et al, Defendant. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on January 22, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. James Edward Williams V-54214 Salinas Valley State Prison Housing: A-5-143 P.O. Box 1050 Soledad, CA 93960 Dated: January 22, 2013 Richard W. Wieking, Clerk By: Jackie Lynn Garcia, Deputy Clerk

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