Haney v. Lim-Javate et al

Filing 11

ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE THAT SUCH MOTION IS UNWARRANTED. Habeas Answer or Dispositive Motion due by 5/7/2018. Signed by Judge Lucy H. Koh on 3/7/2018. (Attachments: # 1 Certificate/Proof of Service)(iym, COURT STAFF) (Filed on 3/7/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRUCE PATRICK HANEY,

Case No. 17-CV-05629 LHK (PR)

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United States District Court
Northern District of California

Plaintiff,
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ORDER OF SERVICE; DIRECTING
DEFENDANT TO FILE DISPOSITIVE
MOTION OR NOTICE THAT SUCH
MOTION IS UNWARRANTED

v.

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DR. R. LIM-JAVATE,
Defendant.
Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint under

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42 U.S.C. § 1983. On January 17, 2018, the court screened the complaint, and dismissed it in part

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with leave to amend. In the order, the court found that plaintiff stated a cognizable claim that

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defendant Dr. R. Lim-Javate violated plaintiff’s right to equal protection. Plaintiff’s claim of

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deliberate indifference to plaintiff’s medical needs was deficient and dismissed with leave to

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amend. Plaintiff’s remaining claims concerning the responses to his administrative grievances

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were dismissed without leave to amend. The court informed plaintiff that if he did not file an

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amended complaint by February 16, 2018, the court would find that further leave to amend

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plaintiff’s claim of deliberate indifference to medical needs would be futile, and this action would

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Case No. 17-CV-05629 LHK (PR)
ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE THAT SUCH
MOTION IS UNWARRANTED

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proceed solely on the equal protection claim.
That date has passed, and plaintiff has not filed an amended complaint. Therefore, the

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court finds that further leave to amend plaintiff’s claim of deliberate indifference to medical needs

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would be futile. This case will proceed solely on the equal protection claim.
CONCLUSION

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1.

The Clerk of the Court shall mail to the defendant, Dr. R. Lim-Javate, a complete

set of the following documents: a Notice of Lawsuit and Request for Waiver of Service of

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Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and all

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attachments thereto, and a copy of this order. Defendant is located at Salinas Valley State Prison.

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The Clerk shall send a courtesy copy of the complaint and this order upon the Attorney General’s

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United States District Court
Northern District of California

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Office. Additionally, the Clerk 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 requires

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him to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant

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to Rule 4, if defendant, after being notified of this action and asked by the court, on behalf of

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plaintiff, to waive service of the summons, fails to do so, he will be required to bear the cost of

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such service unless good cause be shown for his failure to sign and return the waiver form. If

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service is waived, defendant will be required to serve and file an answer within sixty (60) days

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from the date on which the request for waiver was sent to them. Defendant is asked to read the

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statement set forth at the bottom of the waiver form that more completely describes the duties of

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the parties with regard to waiver of service of the summons. If service is waived after the date

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provided in the Notice but before defendant has been personally served, the Answer shall be due

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sixty (60) days from the date on which the request for waiver was sent or twenty (20) days from

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the date the waiver form is filed, whichever is later.

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3.

No later than sixty (60) days from the date the waivers are sent from the court,

defendant shall file one comprehensive motion for summary judgment or other dispositive
Case No. 17-CV-05629 LHK (PR)
ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE THAT SUCH
MOTION IS UNWARRANTED

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motion with respect to the cognizable claim in the complaint. Any motion for summary judgment

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shall be supported by adequate factual documentation and shall conform in all respects to Rule 56

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of the Federal Rules of Civil Procedure. A motion for summary judgment also must be

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accompanied by a Rand notice so that plaintiff will have fair, timely and adequate notice of what

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is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir.

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2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be

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served concurrently with motion for summary judgment). Defendant is advised that summary

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judgment cannot be granted, nor qualified immunity found, if material facts are in dispute.

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If defendant is of the opinion that this case cannot be resolved by summary judgment, he

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shall so inform the court prior to the date the summary judgment motion is due.

United States District Court
Northern District of California

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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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All communications by plaintiff with the court must be served on defendant, or

defendant’s counsel, by mailing a true copy of the document to defendant or defendant’s counsel.
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Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

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No further court order under Federal Rule of Civil Procedure 30(a)(2) is required before the

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parties may conduct discovery.

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8.

It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

informed of any change of address by filing a separate paper with the clerk headed “Notice of
Case No. 17-CV-05629 LHK (PR)
ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE THAT SUCH
MOTION IS UNWARRANTED

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Change of Address.” He also must comply with the court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

3/7/2018
LUCY H. KOH
UNITED STATES DISTRICT JUDGE

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United States District Court
Northern District of California

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Case No. 17-CV-05629 LHK (PR)
ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE THAT SUCH
MOTION IS UNWARRANTED

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