(PC) Thompson v. Razavi et al

Filing 13

ORDER ORDER GRANTING LEAVE TO AMEND; DIRECTING SERVICE OF AMENDED COMPLAINT 12 ; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION;INSTRUCTIONS TO CLERK. Habeas Answer or Dispositive Motion due by 3/9/2021. Responses due by 4/6/2021. Replies due by 4/20/2021. Signed by Judge Edward J. Davila on 1/8/2021. (amkS, COURT STAFF) (Filed on 1/8/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JOHN WILLIAM THOMPSON, United States District Court Northern District of California 11 Plaintiff, 12 13 14 15 v. ERIC RAZAVI, et al., Defendants. Case No. 20-04292 EJD (PR) ORDER GRANTING LEAVE TO AMEND; DIRECTING SERVICE OF AMENDED COMPLAINT; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK 16 17 18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 19 pursuant to 42 U.S.C. § 1983 against medical personnel at Correctional Training Facility 20 (“CTF”) in Soledad and at the California Health Care Facility (“CHCF”) in Stockton, 21 where he is currently incarcerated. Dkt. No. 1. On October 6, 2020, the Court conducted 22 an initial review of the complaint, found it stated a cognizable claim for deliberate 23 indifference to serious medical needs against Defendants Razavi and Tarrara, and ordered 24 service on these two Defendants at CTF. Dkt. No. 10 at 2, 4. The Court dismissed the 25 claims against Defendant Singh as improperly joined to this action. Id. at 3-4. The Court 26 dismissed a Doe Defendant from this action with leave to amend, if Plaintiff was able to 27 identify this Defendant by name at a later time. Id. at 3. 28 Plaintiff has filed an amended complaint providing the name of the Doe Defendant 1 as Dr. Mary Sweet at CTF. Dkt. No. 12. The amended complaint is otherwise identical to 2 the original with respect to the deliberate indifference claim found cognizable against 3 Defendants Razavi, Tarrara, and now newly identified Dr. Sweet. Dkt. No. 10 at 2. 4 Furthermore, no defendant has yet successfully been served with the complaint in this 5 action.1 Accordingly, the Court finds good cause to grant the amendment and deems the 6 amended complaint as the operative complaint in this action. This matter shall proceed on the Eighth Amendment deliberate indifference claims 7 8 found cognizable in the Court’s initial review order against these three Defendants. Dkt. 9 No. 10 at 2. Briefing shall proceed in accordance with the following. 10 CONCLUSION United States District Court Northern District of California 11 12 For the reasons state above, the Court orders as follows: 13 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 14 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 15 of the amended complaint, all attachments thereto, and a copy of this order upon 16 Defendants Dr. Eric Razavi, DDS, Dr. Tarrara, MD, and Dr. Mary Sweet, MD, at the 17 Correctional Training Facility (P.O. Box 686, Soledad, CA 93960-0686). The Clerk 18 shall also mail a copy of this Order to Plaintiff. 2. 19 Defendants are cautioned that Rule 4 of the Federal Rules of Civil 20 Procedure requires them to cooperate in saving unnecessary costs of service of the 21 summons and the amended complaint. Pursuant to Rule 4, if Defendants, after being 22 notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the 23 summons, fail to do so, they will be required to bear the cost of such service unless good 24 cause shown for their failure to sign and return the waiver form. If service is waived, this 25 26 27 28 11 The request for waiver of service was sent to Defendants on October 7, 2020, but there is no indicant that Defendants received these documents. Dkt. No. 11. To date, no Defendant has made an appearance in this matter. 2 1 action will proceed as if Defendants had been served on the date that the waiver is filed, 2 except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file 3 an answer before sixty (60) days from the day on which the request for waiver was sent. 4 (This allows a longer time to respond than would be required if formal service of summons 5 is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 6 form that more completely describes the duties of the parties with regard to waiver of 7 service of the summons. If service is waived after the date provided in the Notice but 8 before Defendants have been personally served, the Answer shall be due sixty (60) days 9 from the date on which the request for waiver was sent or twenty (20) days from the date 10 United States District Court Northern District of California 11 the waiver form is filed, whichever is later. 3. No later than ninety-one (91) days from the date this order is filed, 12 Defendants shall file a motion for summary judgment or other dispositive motion with 13 respect to the claims in the amended complaint found to be cognizable above. a. 14 Any motion for summary judgment shall be supported by adequate 15 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 16 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 17 qualified immunity found, if material facts are in dispute. If any Defendant is of the 18 opinion that this case cannot be resolved by summary judgment, he shall so inform the 19 Court prior to the date the summary judgment motion is due. b. 20 In the event Defendants file a motion for summary judgment, the 21 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 22 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 23 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 24 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 25 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 26 motion is filed. 27 28 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 3 1 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 2 must come forward with evidence showing triable issues of material fact on every essential 3 element of his claim). Plaintiff is cautioned that failure to file an opposition to 4 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 5 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 6 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 7 F.3d 651, 653 (9th Cir. 1994). 8 9 10 United States District Court Northern District of California 11 12 5. Defendants shall file a reply brief no later than fourteen (14) days after Plaintiff’s opposition is filed. 6. 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. 7. All communications by the Plaintiff with the Court must be served on 13 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 14 copy of the document to Defendants or Defendants’ counsel. 15 8. Discovery may be taken in accordance with the Federal Rules of Civil 16 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 17 Rule 16-1 is required before the parties may conduct discovery. 18 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 19 court informed of any change of address and must comply with the court’s orders in a 20 timely fashion. Failure to do so may result in the dismissal of this action for failure to 21 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 22 23 24 25 10. 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. 1/8/2021 Dated: _____________________ ________________________ EDWARD J. DAVILA United States District Judge 26 27 28 Order of Service of Amended Complaint PRO-SE\EJD\CR.20\04292Thompson_svc-am.compl 4

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