Long v. Hatton et al

Filing 78

ORDER OF SERVICE ON DEFENDANT ALFRED LOPEZ. Habeas Answer or Dispositive Motion due by 11/13/2018. Signed by Judge Edward J. Davila on 9/11/2018. (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 9/11/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DORAN R. LONG,
United States District Court
Northern District of California

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Plaintiff,

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v.

Case No. 18-00570 EJD (PR)
ORDER OF SERVICE ON
DEFENDANT ALFRED LOPEZ

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S. HATTON, et al.,

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Defendants.

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Plaintiff, a state prisoner, filed a pro se civil rights complaint pursuant to 42 U.S.C.

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§ 1983 against officials at Correctional Training Facility (“CTF”).1 On May 2, 2018, the

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Court issued an order of service, (Docket No. 13), and service documents were sent to A.

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Lopez at CTF. (Docket No. 28.) On June 5, 2018, an envelope addressed to Defendant A.

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Lopez was returned to the Court as undeliverable with the notation, “Adriana Lopez?

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CCHCS” on the envelope. (Docket No. 38.) On June 12, 2018, the Clerk sent service

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documents for A. Lopez to California Correctional Health Care Services (“CCHCS”).

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(Docket No. 53.) On July 12, 2018, the Court received a letter from the California Prison

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Industry (“CALPIA”), stating that A. Lopez is not employed there.2 (Docket No. 69.) On

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This matter was reassigned to this Court on February 27, 2018. (Docket No. 6.)

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It is unclear how the CALPIA became involved although it appears they are responding

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July 19, 2018, having received no response from CCHCS, the Court issued an order

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directing Plaintiff to file a notice providing the Court with accurate and current location

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information for Defendant A. Lopez. (Docket No. 70.) Plaintiff filed a response indicating

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that Defendant A. Lopez’s correct full name is “Alfredo Lopez” and that he was a

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supervisor at California Prison Industries Authority/Health Facilities Maintenance

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Division, (CALPIA/HFM.) (Docket No. 71.) With the additional information provided by

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Plaintiff, the Court issued an order on August 17, 2018, requesting that CALPIA Litigation

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Coordinator provide a forwarding address for Alfred Lopez. (Docket No. 72.) On August

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30, 2018, counsel for Defendants filed under seal a Declaration by D. Kamakani, Chief of

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Human Resources at CALPIA, containing the last known address for Defendant A. Lopez.

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United States District Court
Northern District of California

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(Docket No. 77 at 2.) Based on the information provided, the Court will order the matter

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served on Defendant A. Lopez at the last known address provided in the sealed declaration.

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CONCLUSION

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For the reasons state above, the Court orders as follows:

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1.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for

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Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy

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of the amended complaint, (Docket No. 7), all attachments thereto, a copy of the Court’s

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February 2, 2018 Order, (Docket No. 13), and a copy of this order upon Defendant A.

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Lopez at the last known address contained in the sealed declaration. The Clerk shall also

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mail a copy of this Order to Plaintiff and counsel for Defendants who have already

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appeared in this action.

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2.

Defendant is cautioned that Rule 4 of the Federal Rules of Civil

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

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to service documents that were sent to CTF. (Docket No. 69.)

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Order of Service on Defendant Alfred Lopez
P:\PRO-SE\EJD\CR.18\00570Long_serve-Lopez.docx

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summons and the complaint. Pursuant to Rule 4, if Defendant, after being notified of this

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action and asked by the Court, on behalf of Plaintiff, to waive service of the summons,

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fails to do so, he will be required to bear the cost of such service unless good cause shown

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for their failure to sign and return the waiver form. If service is waived, this action will

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proceed as if Defendant had been served on the date that the waiver is filed, except that

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pursuant to Rule 12(a)(1)(B), Defendant will not be required to serve and file an answer

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before sixty (60) days from the day on which the request for waiver was sent. (This

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allows a longer time to respond than would be required if formal service of summons is

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necessary.) Defendant is asked to read the statement set forth at the foot of the waiver

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form that more completely describes the duties of the parties with regard to waiver of

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United States District Court
Northern District of California

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service of the summons. If service is waived after the date provided in the Notice but

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before Defendant has been personally served, the Answer shall be due sixty (60) days from

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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 ninety-one (91) days from the date this order is filed,

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Defendant shall file a motion for summary judgment or other dispositive motion with

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respect to the claims in the complaint found to be cognizable above.

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a.

Any motion for summary judgment shall be supported by adequate

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factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of

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Civil 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, he shall so inform the Court prior

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to the date the summary judgment motion is due.

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b.

In the event Defendant files a motion for summary judgment, the

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Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate

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warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See

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Order of Service on Defendant Alfred Lopez
P:\PRO-SE\EJD\CR.18\00570Long_serve-Lopez.docx

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Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012).
4.

Plaintiff’s opposition to the dispositive motion shall be filed with the Court

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and served on Defendant no later than twenty-eight (28) days from the date Defendant’s

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motion is filed.
Plaintiff is also 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). Plaintiff is cautioned that failure to file an opposition to

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Defendant’s motion for summary judgment may be deemed to be a consent by Plaintiff to

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the granting of the motion, and granting of judgment against Plaintiff without a trial. See

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United States District Court
Northern District of California

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Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18

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F.3d 651, 653 (9th Cir. 1994).

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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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Plaintiff has filed a motion for summary judgment and supporting papers.

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(Docket Nos. 41-44.) Defendant’s opposition to the motion shall be filed twenty-eight

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(28) days from the date this order is filed. Plaintiff’s reply shall be filed no later than

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fourteen (14) days after Defendants’ opposition is filed.

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7.

The above motions shall be deemed submitted as of the date the reply brief is

due. No hearing will be held on the motions 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

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Defendant, or Defendant’s counsel once counsel has been designated, by mailing a true

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copy of the document to Defendant or Defendant’s counsel.

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9.

Discovery may be taken in accordance with the Federal Rules of Civil

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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local

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Rule 16-1 is required before the parties may conduct discovery.

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Order of Service on Defendant Alfred Lopez
P:\PRO-SE\EJD\CR.18\00570Long_serve-Lopez.docx

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10.

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

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court 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

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prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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11.

Extensions of time must be filed no later than the deadline sought to be

extended and must be accompanied by a showing of good cause.
IT IS SO ORDERED.
9/11/2018
Dated: _____________________

________________________
EDWARD J. DAVILA
United States District Judge

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United States District Court
Northern District of California

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Order of Service on Defendant Alfred Lopez
P:\PRO-SE\EJD\CR.18\00570Long_serve-Lopez.docx

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