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Yandell v. Cate

United States District Court, N.D. California, Oakland Division

March 4, 2014

RONALD DEAN YANDELL, Plaintiff,
v.
MATTHEW CATE, et al., Defendants.

ORDER OF SERVICE AND GRANTING MOTION TO PROCEED IN FORMA PAUPERIS

PHYLLIS J. HAMILTON, District Judge.

Plaintiff, a prisoner at Pelican Bay State Prison, proceeds with a pro se civil rights complaint under 42 U.S.C. § 1983. He has paid the filing fee. The court dismissed several claims and defendants but found that claims against defendants Nakamura and Sayre could proceed. As plaintiff was not proceeding in forma pauperis ("IFP") and never filed an application to proceed IFP, he was ordered to serve the defendants himself. Plaintiff described his difficulties in serving defendants and was provided an application to proceed IFP and instructed to complete the forms and return them to the court. Plaintiff has returned the application. Based on plaintiff's difficulties serving defendants as he is in the Secured Housing Unit and due to his financial status, the application to proceed IFP will be granted and the United States Marshal will be instructed to serve defendants.

CONCLUSION

1. Plaintiff's motion to proceed IFP (Docket No. 14) is GRANTED.

2. The clerk shall issue a summons and the United States Marshal shall serve, without prepayment of fees, copies of the amended complaint (Docket No. 7) with attachments and copies of this order on the following defendants: Nurse Nakamura and Chief Medical Officer Sayre of Pelican Bay State Prison.

3. In order to expedite the resolution of this case, the court orders as follows:

a. No later than sixty days from the date of service, defendants shall file a motion for summary judgment or other dispositive motion. The motion shall be supported by adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56, and shall include as exhibits all records and incident reports stemming from the events at issue. 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 their summary judgment motion is due. All papers filed with the court shall be promptly served on the plaintiff.

b. At the time the dispositive motion is served, defendants shall also serve, on a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) ( Rand and Wyatt notices must be given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed, not earlier); Rand at 960 (separate paper requirement).

c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the court and served upon defendants no later than thirty days from the date the motion was served upon him. 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. § 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. 2003).

d. If defendants wish to file a reply brief, they shall do so no later than fifteen days after the opposition is served upon them.

e. 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.

4. All communications by plaintiff with the court must be served on defendants, or defendants' counsel once counsel has been designated, by mailing a true copy of the document to defendants or defendants' counsel.

5. 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) is required before the parties may conduct discovery.

6. 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 Change of Address." He also 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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