MacGregor v. Martin et al
Filing
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ORDER OF SERVICE. Habeas Answer or Dispositive Motion due by 2/17/2015. Signed by Judge Ronald M. Whyte on 12/17/14. (jgS, COURT STAFF) (Filed on 12/17/2014)
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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
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
that there was no employee known as Nurse A. Yan and that more identifying information was
Order of Service
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needed. (Docket No. 26.) On September 24, 2014, the court issued an order directing plaintiff
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to provide more identifying information for defendant Yan or risk defendant Yan being
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dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
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Plaintiff has provided a response to the court’s September 24, 2014 order indicating that Plaintiff
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states that the correct spelling of the defendant’s name is “Yin.” (Docket No. 36.)
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CONCLUSION
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Based on the information provided, the court orders:
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1.
The clerk of the court to 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 Nurse Yin at San Quentin
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State Prison, Litigation Office.
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2.
Nurse Yin is cautioned that Rule 4 of the Federal Rules of Civil Procedure
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requires him/her 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/she will be
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required to bear the cost of such service unless good cause is shown for his/her failure to sign
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and return the waiver form. If service is waived, this action will proceed as if defendant had
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been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B),
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defendant will not be required to serve and file an answer before sixty (60) days from the date
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on which the request for waiver was sent. 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
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waiver form is filed, 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.
Order of Service
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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
Order of Service
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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.
DR. MARTIN, 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 December 17, 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
Bldg #A-5,240
High Desert State Prison
PO Box 3030
Susanville, CA 96127
Dated: December 17, 2014
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk
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