United States District Court, N.D. California, Eureka Division
September 29, 2014
WILLIE MORRIS CLAY, Plaintiff,
DAVID LIVINGSTON, et. al., Defendants.
ORDER DENYING MOTION TO COMPEL AND SERVING ADDITIONAL DEFENDANTS
NANDOR J. VADAS, Magistrate Judge.
Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 U.S.C. § 1983, alleging constitutional violations during daytime fasting for Ramadan. Three Defendants have been served. Presently pending is Plaintiff's second amended complaint that the Court will construe as a motion to amend, and Plaintiff's motion to compel.
The second amended complaint contains the same general allegations as the operative first amended complaint but also names three additional Defendants whose identities were not previously known. Defendants state that they will stipulate to a motion for leave to amend to substitute the Defendants. Docket No. 33 at 2. Therefore, the motion to amend will be granted and this case will proceed on the second amended complaint. The Court will order service on Senior Chaplain Harold Albert, Sgt. Nubia Zamora and lead cook Jose Garcia.
With respect to the motion to compel, Plaintiff submitted a discovery request to Defendants on May 19, 2014. More than a week before the deadline for Defendants to respond to the request, Plaintiff filed a motion to compel with the Court which was received around the same time that Defendants provided plaintiff with discovery responses. As Defendants have provided discovery responses and as plaintiff has not set forth if the responses were insufficient, the motion to compel is denied.
1. The motion to compel (Docket No. 28) is DENIED.
2. The motion to amend is GRANTED and the case continues on the second amended complaint.
3. The clerk shall issue a summons and Magistrate Judge jurisdiction consent form and the United States Marshal shall serve, without prepayment of fees, the summons, Magistrate Judge jurisdiction consent form, copies of the second amended complaint (Docket No. 32) with attachments and copies of this order on Senior Chaplain Harold Albert, Sgt. Nubia Zamora and lead cook Jose Garcia at Martinez Detention Facility.
4. 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 the 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, Defendant 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 a motion for summary judgment 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, he shall do so no later than fifteen days after the opposition is served upon her.
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.
5. All communications by 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.
6. 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.
7. 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.