Lopez v. Spurgeon et al
Filing
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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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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HECTOR LOPEZ,
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Plaintiff,
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v.
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D. SPURGEON, et al.,
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Defendants.
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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
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against Pelican Bay State Prison (“PBSP”) officials pursuant to 42 U.S.C. § 1983. On October
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23, 2013, the court ordered a partial dismissal of plaintiff’s complaint, and ordered service upon
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the named defendants. (Docket No. 21.) Office Technician L. Padon of the Litigation office at
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PBSP, had previously informed the court that he was “unable to identify H. Clotta as ever
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working at Pelican Bay State Prison.” (Docket No. 9.) In response to the court’s order directing
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plaintiff to provide the court with more information to help identify and serve defendant H.
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Clotta, (docket no. 12), plaintiff filed a declaration stating that he was notified by defendants that
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defendant H. Clotta’s accurate name is D. Hale. (Docket No. 19.) Plaintiff requests the court to
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serve the amended complaint upon D. Hale, a correctional officer employed at PBSP, not H.
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Clotta. Plaintiff’s request is GRANTED.
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Order Granting Pl. Request to Serve D. Hale
G:\PRO-SE\RMW\CR.13\Lopez173srv-DHale.wpd
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CONCLUSION
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For the foregoing reasons, the Court 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 amended
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complaint and all attachments thereto (docket no. 10), and a copy of the court’s order dated
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October 23, 2013 order (docket no. 21), and a copy of this order to Correctional Officer D.
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Hale at PBSP. The clerk of the court shall also mail a courtesy copy of this order to the
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California Attorney General’s Office. Additionally, the clerk shall mail a copy of this order to
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plaintiff.
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2.
The clerk of the court is directed to substitute defendant D. Hale for defendant H.
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Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure
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Clotta.
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requires him 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, fail to do so, he will be required to bear the
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cost of such service unless good cause is shown for their 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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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
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in the amended 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.
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).
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6.
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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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
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Order Granting Pl. Request to Re-Serve Defendant
G:\PRO-SE\RMW\CR.13\Lopez173srv-DHale.wpd
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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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