Lopez v. Spurgeon et al

Filing 22

ORDER Granting 19 Plaintiff's Request to Serve Defendant D. Hale. Signed by Judge Ronald M. Whyte on 11/27/13. (jgS, COURT STAFF) (Filed on 11/27/2013)

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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 HECTOR LOPEZ, 11 Plaintiff, 12 v. 13 D. SPURGEON, et al., 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) No. C 13-0173 RMW (PR) ORDER GRANTING PLAINTIFF’S REQUEST TO SERVE DEFENDANT D. HALE Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint 16 17 against Pelican Bay State Prison (“PBSP”) officials pursuant to 42 U.S.C. § 1983. On October 18 23, 2013, the court ordered a partial dismissal of plaintiff’s complaint, and ordered service upon 19 the named defendants. (Docket No. 21.) Office Technician L. Padon of the Litigation office at 20 PBSP, had previously informed the court that he was “unable to identify H. Clotta as ever 21 working at Pelican Bay State Prison.” (Docket No. 9.) In response to the court’s order directing 22 plaintiff to provide the court with more information to help identify and serve defendant H. 23 Clotta, (docket no. 12), plaintiff filed a declaration stating that he was notified by defendants that 24 defendant H. Clotta’s accurate name is D. Hale. (Docket No. 19.) Plaintiff requests the court to 25 serve the amended complaint upon D. Hale, a correctional officer employed at PBSP, not H. 26 Clotta. Plaintiff’s request is GRANTED. 27 // 28 // Order Granting Pl. Request to Serve D. Hale G:\PRO-SE\RMW\CR.13\Lopez173srv-DHale.wpd 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. The clerk of the court shall mail a notice of lawsuit and request for waiver of 4 service of summons, two copies of the waiver of service of summons, a copy of the amended 5 complaint and all attachments thereto (docket no. 10), and a copy of the court’s order dated 6 October 23, 2013 order (docket no. 21), and a copy of this order to Correctional Officer D. 7 Hale at PBSP. The clerk of the court shall also mail a courtesy copy of this order to the 8 California Attorney General’s Office. Additionally, the clerk shall mail a copy of this order to 9 plaintiff. 10 2. The clerk of the court is directed to substitute defendant D. Hale for defendant H. 3. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure 11 12 Clotta. 13 requires him to cooperate in saving unnecessary costs of service of the summons and complaint. 14 Pursuant to Rule 4, if defendant, after being notified of this action and asked by the court, on 15 behalf of plaintiff, to waive service of the summons, fail to do so, he will be required to bear the 16 cost of such service unless good cause is shown for their failure to sign and return the waiver 17 form. If service is waived, this action will proceed as if defendant had been served on the date 18 that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendant will not be required 19 to serve and file an answer before sixty (60) days from the date on which the request for waiver 20 was sent. (This allows a longer time to respond than would be required if formal service of 21 summons is necessary.) Defendant is asked to read the statement set forth at the bottom of the 22 waiver form that more completely describes the duties of the parties with regard to waiver of 23 service of the summons. If service is waived after the date provided in the notice but before 24 defendant has been personally served, the answer shall be due sixty (60) days from the date on 25 which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, 26 whichever is later. 27 28 4. No later than ninety (90) days from the date of this order, defendant shall file a motion for summary judgment or other dispositive motion with respect to the cognizable claim Order Granting Pl. Request to Serve D. Hale G:\PRO-SE\RMW\CR.13\Lopez173srv-DHale.wpd 2 1 in the amended complaint. 2 a. If defendant elects to file a motion to dismiss on the grounds that plaintiff 3 failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), 4 defendant shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315 5 F.3d 1108, 1119-20 (9th Cir. 2003). 6 b. Any motion for summary judgment shall be supported by adequate factual 7 documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil 8 Procedure. Defendant is advised that summary judgment cannot be granted, nor qualified 9 immunity found, if material facts are in dispute. If defendant is of the opinion that this 10 case cannot be resolved by summary judgment, they shall so inform the court prior to the 11 date the summary judgment motion is due. 12 5. Plaintiff’s opposition to the dispositive motion shall be filed with the court and 13 served on defendant no later than twenty-eight (28) days from the date defendant’s motion is 14 filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex 15 Corp. v. Catrett, 477 U.S. 317 (1986). 16 17 18 19 20 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. 8. All communications by the plaintiff with the court must be served on defendant or 21 defendant’s counsel, by mailing a true copy of the document to defendant or defendant’s 22 counsel. 23 24 25 26 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. IT IS SO ORDERED. DATED: RONALD M. WHYTE United States District Judge 27 28 Order Granting Pl. Request to Re-Serve Defendant G:\PRO-SE\RMW\CR.13\Lopez173srv-DHale.wpd 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA HECTOR LOPEZ, Case Number: CV13-00173 RMW Plaintiff, CERTIFICATE OF SERVICE v. D. SPURGEON 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 November 27, 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. Hector Lopez V00109 C10-119 Post office 7500 Crescent City, CA 95531 Dated: November 27, 2013 Richard W. Wieking, Clerk By: Jackie Lynn Garcia, Deputy Clerk

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