Treglia v. Kerman et al

Filing 70

ORDER OF SERVICE ON DEFENDANT NURSE SMITH Dispositive Motion due by 10/24/2013.. Signed by Judge Lucy H. Koh on 7/25/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 7/26/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DANIEL TREGLIA,

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Plaintiff,
v.

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SCOTT KERNAN, et al.,
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Defendants.
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No. C 12-2522 LHK (PR)
ORDER OF SERVICE ON
DEFENDANT NURSE SMITH

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

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action under 42 U.S.C. § 1983. The Court found that Plaintiff stated a cognizable claim of

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deliberate indifference against Defendant Nurse Smith and issued an order of service. (Docket

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No. 4.) The Litigation Office Technician at Pelican Bay State Prison (“PBSP”) returned a notice

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of lawsuit and request for waiver of service of summons mailed to Defendant Nurse Smith,

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because he was “unable to identify a ‘Nurse Smith’ as working at Pelican Bay State Prison.”

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(Docket No. 47.) In response to a Court order for more information, Plaintiff filed a response

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which provided that Defendant Nurse Smith is also known as “Mr. E. Smith.” He further

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provided that Defendant Nurse Smith is a licensed vocational nurse (“LVN”). (Docket No. 52.)

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The Court issued a second order of service on Defendant Smith. (Doc. No. 53.) The documents

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sent to Defendant Nurse E. Smith, LVN at PBSP were returned as undeliverable without

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explanation. (Docket No. 62.) Plaintiff has provided the Court with additional information

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about the identify of Defendant Nurse Smith. (Docket No. 67.)
Order of Service on Defendant Nurse Smith
G:\PRO-SE\LHK\CR.12\Treglia522srv2-smith.wpd

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Plaintiff provides that Defendant Nurse is identified as “Licensed Vocational (LVN) J.

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Smith” in a director’s level appeal decision. (See Docket No. 27, p. 54, attached.) Based upon

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the additional information provided by Plaintiff for Defendant Nurse J. Smith, the Court will

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issue an order of service upon him.

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CONCLUSION
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The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the amended

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complaint (docket no. 3), all attachments thereto, the Court’s Order dated November 8, 2012

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(docket no. 11), and this order to Defendant Nurse J. Smith, LVN at Pelican Bay State Prison

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P.O. Box 7000, Crescent City, CA 95531-7000.
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The Clerk shall also mail a copy of this order to the Litigation Coordinator at

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Pelican Bay State Prison, P.O. Box 7000, Crescent City, CA 95531-7000, and Deputy Attorney

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General Michael James Quinn, at the Attorney General’s Office at 455 Golden Gate Avenue,

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Suite 11000, San Francisco, CA 94102-7004.

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3.

Defendant Nurse J. Smith, LVN is cautioned that Rule 4 of the Federal Rules of

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Civil Procedure requires him to cooperate in saving unnecessary costs of service of the summons

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and complaint. Pursuant to Rule 4, if Defendant, after being notified of this action and asked by

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the Court, on behalf of Plaintiff, to waive service of the summons, fails to do so, they will be

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required to bear the cost of such service unless good cause is shown for the failure to sign and

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return the waiver form. If service is waived, this action will proceed as if Defendant had been

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served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant

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will not be required to serve and file an answer before sixty (60) days from the date on which

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the request for waiver was sent. (This allows a longer time to respond than would be required if

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

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the bottom of the waiver form that more completely describes the duties of the parties with

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regard to waiver of service of the summons. If service is waived after the date provided in the

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Notice but before Defendant has been personally served, the Answer shall be due sixty (60) days

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from the date on which the request for waiver was sent or twenty (20) days from the date the
Order of Service on Defendant Nurse Smith
G:\PRO-SE\LHK\CR.12\Treglia522srv2-smith.wpd

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waiver form is filed, whichever is later.
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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 claims

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in the complaint.

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a.

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

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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, they shall so inform the Court prior to the

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date the summary judgment motion is due.

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5.

All other deadlines shall remain in effect in accordance with the Court’s order

filed November 8, 2012. (Docket No. 11.)
IT IS SO ORDERED.
DATED:

7/25/13
LUCY H. KOH
United States District Judge

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Order of Service on Defendant Nurse Smith
G:\PRO-SE\LHK\CR.12\Treglia522srv2-smith.wpd

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