Sterni v. Napa State Hospital et al

Filing 11

ORDER OF SERVICE; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion. Dispositive Motion due by 5/22/2013. Signed by Judge Ronald M. Whyte on 2/21/13. (jg, COURT STAFF) (Filed on 2/21/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MICHAEL ALLEN STERNI,

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Plaintiff,
v.

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UNIT SUPERVISOR LAPAGE,

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Defendant.

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No. C 12-5145 RMW (PR)
ORDER OF SERVICE;
DIRECTING DEFENDANT TO
FILE DISPOSITIVE MOTION
OR NOTICE REGARDING
SUCH MOTION

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
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U.S.C. § 1983. On December 19, 2012, the court dismissed most of the claims for failure to state
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a claim. The court dismissed the claims against Dr. Jacques and Dr. Spivie with leave to amend
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in order to clarify plaintiff’s allegations. The court found cognizable plaintiff’s claim that Unit
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Supervisor LaPage forced plaintiff to submit to a blood draw against plaintiff’s beliefs, in
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violation of the Fourth Amendment. The court directed plaintiff that failure to file an amended
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complaint would result in the court automatically proceeding with the only cognizable claim
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initially found in plaintiff’s complaint. Plaintiff has not filed an amended complaint.
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CONCLUSION
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For the foregoing reasons, the court hereby orders as follows:
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1.

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 complaint
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Order of Service; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion
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and all attachments thereto (docket no. 1), and a copy of this order to Unit Supervisor LaPage

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at Napa State Hospital. The clerk shall also serve a copy of this order on plaintiff and mail a

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courtesy copy of the complaint to the California Attorney General’s Office.

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2.

Defendant 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, fails to do so, he will be required to bear the

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cost of such service unless good cause is shown for his 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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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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3.

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.

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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defendants 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
Order of Service; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion
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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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4.

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 Celotex

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

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

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claim).

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5.

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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All communications by the plaintiff with the court must be served on defendant or

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

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counsel.

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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.
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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:
RONALD M. WHYTE
United States District Judge

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Order of Service; Directing Defendant to File Dispositive Motion or Notice Regarding Such Motion
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ALLEN STERNI,

Case Number: CV12-05145 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
NAPA STATE HOSPITAL et al,
Defendant.

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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 February 21, 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.

Michael Allen Sterni AL-7692
California Correctional Institution
Facility -D/ Dorm-5/Bunk #46U
Post Office Box 608
Tehachapi, CA 93581
Dated: February 21, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk