Moore v. State of California et al
Filing
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ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION. Signed by Judge Nathanael Cousins on 3/30/2016. (Attachments: # 1 Certificate/Proof of Service)(lmh, COURT STAFF) (Filed on 3/30/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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DERRICK D. MOORE,
Plaintiff,
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v.
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No. C 15-2687 NC (PR)
ORDER OF SERVICE; DIRECTING
DEFENDANT TO FILE DISPOSITIVE
MOTION OR NOTICE REGARDING
SUCH MOTION
COUNTY OF ALAMEDA,
Defendant.
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Plaintiff Derrick D. Moore, a California state prisoner proceeding pro se, filed a
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second amended civil rights action under 42 U.S.C. § 1983. For the reasons stated below, the
court serves the second amended complaint, and directs Defendant to file a dispositive
motion or notice regarding such motion.
DISCUSSION
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I.
Standard of Review
A federal court must engage in a preliminary screening of any case in which a
prisoner seeks redress from a governmental entity or officer or employee of a governmental
entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims,
and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that
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a right secured by the Constitution or laws of the United States was violated and (2) that the
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violation was committed by a person acting under the color of state law. West v. Atkins, 487
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U.S. 42, 48 (1988).
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II.
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Legal Claims
In Plaintiff’s second amended complaint, Plaintiff alleges that the County of Alameda
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is violating his right to equal protection because, while Plaintiff is a state prisoner being
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housed in a county facility, he is not eligible for 33% work time credits like those inmates
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housed in a state facility. Also, inmates housed in state prison are afforded cheaper
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For the Northern District of California
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commissary items and allowed other privileges, whereas Plaintiff not. Liberally construed,
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these allegations state a cognizable claim that Defendant is violating Plaintiff’s right to equal
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protection.
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CONCLUSION
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The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver
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of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the
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second amended complaint and all attachments thereto, a magistrate judge consent form, and
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a copy of this order to the County of Alameda. The Clerk of the court shall also mail a
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courtesy copy of the second amended complaint and a copy of this order to the Alameda
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County Counsel, 1221 Oak Street, Suite 450, Oakland CA 94612. Additionally, the Clerk
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shall mail a copy of this order to Plaintiff.
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2.
Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure
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requires it 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, it will be required to bear
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the cost of such service unless good cause be shown for its 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
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on the date that the waiver is filed, and Defendant will not be required to serve and file an
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answer before sixty (60) days from the date on which the request for waiver was sent.
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Defendant is asked to read the statement set forth at the bottom of the waiver form that more
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completely describes the duties of the parties with regard to waiver of service of the
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summons. If service is waived after the date provided in the Notice but before Defendant has
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been personally served, the Answer shall be due sixty (60) days from the date on which the
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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 waivers are sent from the court,
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Defendant shall file a motion for summary judgment or other dispositive motion with respect
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to the cognizable claim in the second amended complaint. At that time, Defendant shall
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For the Northern District of California
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also file the magistrate judge consent form.
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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
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qualified immunity found, if material facts are in dispute. If Defendant is of the opinion
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that this case cannot be resolved by summary judgment, it shall so inform the court
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prior to the 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
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is filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and
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Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment
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must come forward with evidence showing triable issues of material fact on every essential
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element of his 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 Defendant’s counsel, by mailing a true copy of the document to Defendant or
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Defendant’s counsel.
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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
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court and all parties informed of any change of address and must comply with the court’s
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orders in a timely fashion. Failure to do so may result in the dismissal of this action for
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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
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IT IS SO ORDERED.
United States District Court
For the Northern District of California
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DATED:
March 30, 2016
NATHANAEL M. COUSINS
United States Magistrate Judge
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