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Uribe v. Babienco

United States District Court, Ninth Circuit

May 1, 2013

CESAR URIBE, Plaintiff,
v.
PHILIP BABIENCO; LUZ F. NARES; WILLIAM J. HILL; GERALD ELLIS, Defendants

SCHEDULING ORDER

WILLIAM ALSUP, District Judge.

Plaintiff, a California prisoner currently incarcerated at the California Training Facility in Soledad, California ("CTF"), filed this pro se civil rights action in state court. Because the complaint contained a federal claims for the violation of plaintiff's Eighth Amendment rights, defendants Philip Babienco, Luz F. Nares, William J. Hill, and Gerald Ellis timely removed the case to federal court. See 28 U.S.C. 1441, 1367. A review of the complaint under 28 U.S.C. 1915A(a) reveals that, when liberally construed, the Eighth Amendment and state law claims are cognizable. Accordingly, it is hereby ordered as follows:

1. In order to expedite the resolution of this case:

a. No later than 91 days from the date this order is filed, defendants shall file a motion for summary judgment or other dispositive motion. If defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the court prior to the date the summary judgment motion is due. All papers filed with the court shall be promptly served on the plaintiff.

b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the court and served upon defendants no later than 28 days from the date of service of the motion. Plaintiff must read the attached page headed "NOTICE - WARNING, " which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

If defendants file an unenumerated motion to dismiss claiming that plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. ยง 1997e(a), plaintiff should take note of the attached page headed "NOTICE - WARNING (EXHAUSTION), " which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir.), cert. denied, Alameida v. Wyatt, 124 S.Ct. 50 (2003).

c. Defendants shall file a reply brief no later than 14 days after the date of service of the opposition.

d. 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.

e. Along with their motion, defendants shall proof that they served plaintiff the applicable warning(s) required by Woods v. Carey, No. 09-15548, slip op. 7871 (9th Cir. July 6, 2012) and/or Stratton v. Buck, No. 10-35656, slip op. 11477 (9th Cir. Sept. 19, 2012), at the same time they served him with their motion. Failure to do so will result in the summary dismissal of their motion without prejudice.

2. Defendants shall file an answer in accordance with the Federal Rules of Civil Procedure.

3. Communications by the plaintiff with the court must be served on defendant, or defendant's counsel once counsel has been designated, by mailing a true copy of the document to defendant or defendant's counsel.

4. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required before the parties may conduct discovery.

5. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.


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