MacGregor v. Martin et al

Filing 29

ORDER OF SERVICE; ORDER Directing Plaintiff to Provide Court With More Information for Defendant Yan. Habeas Answer Due by 11/24/2014. Signed by Judge Ronald M. Whyte on 9/24/14. (jgS, COURT STAFF) (Filed on 9/24/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KEVIN A. MACGREGOR,
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Plaintiff,
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v.
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DR. MARTIN, et al.,
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Defendants.
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No. C 13-2309 RMW (PR)
ORDER OF SERVICE; ORDER
DIRECTING PLAINTIFF TO
PROVIDE COURT WITH MORE
INFORMATION FOR DEFENDANT
YAN

Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint against prison

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officials at San Quentin State Prison (“SQSP”), pursuant to 42 U.S.C. § 1983. The court ordered

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service of plaintiff’s civil rights complaint upon defendants. (Docket No. 7.) Notices of lawsuit

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and requests for waiver of service of summons were returned for defendants Nurse Yan and Dr.

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Martin because the defendants were “not at San Quentin.” (Docket Nos. 9 and 10.) On October

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23, 2013, the court directed plaintiff to provide the court with an accurate and current location

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for defendants Martin and Yan. (Docket No. 12.) On January 9, 2014, plaintiff filed a response

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to the court’s order indicating that defendants “Doctor Martin and Nurse A. Yan were employed

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at the San Quentin Neumillar Infirmary, between 2004 to approx. 2008.” (Docket No. 23.)

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On July 18, 2014, the court received a letter from SQSP Litigation Coordinator indicating

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that there was no employee known as Nurse A. Yan and that more identifying information was

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needed. (Docket No. 26.)

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In the interest of justice, the court will allow plaintiff to attempt to provide more

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identifying information for defendant Yan. If plaintiff fails to provide the court with more

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identifying information for defendant Yan within thirty (30) days of the date this order is
Order of Service: Order Directing Pl. to Provide More Info. for Def. Yan
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filed, plaintiff’s claims against defendant Yan will be dismissed without prejudice pursuant to

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Rule 4(m) of the Federal Rules of Civil Procedure.

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The letter from SQSP Litigation Coordinator also indicated that Dr. Timothy Martin was
a former employee of SQSP. A confidential current address was provided. (Docket No. 26.)

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CONCLUSION

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For the foregoing reasons, the court orders:

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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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and all attachments thereto (docket no. 1), and a copy of this order to Dr. Timothy Martin at the

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confidential address provided by the San Quentin State Prison Litigation Coordinator in docket

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no. 26.

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2.

Dr. Timothy Martin is cautioned that Rule 4 of the Federal Rules of Civil

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

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

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court, on behalf of plaintiff, to waive service of the summons, fails to do so, he will be required

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

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waiver form. If service is waived, this action will proceed as if defendant had been served on the

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date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendant will not be

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required to serve and file an answer before sixty (60) days from the date on which the request

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for waiver was sent. 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 sixty (60) days from the date the waiver is sent, defendant shall file

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a 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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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, 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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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

KEVIN ANTHONY MACGREGOR,

Case Number: CV13-02309 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
DOCTOR MARTIN MD 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 September 24, 2014, 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.

Kevin A. MacGregor V-94008
#10, 150
California State Prison - Solano
PO Box 4000
Vacaville, CA 95696
Dated: September 24, 2014
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk