United States District Court, N.D. California
ORDER OF SERVICE Re: Dkt. No. 49
JAMES DONATO, District Judge.
Plaintiff, a state prisoner proceeding pro se, brought a civil rights action under 42 U.S.C. § 1983. This action alleges that defendants, doctors and dentists at North Kern State Prison ("NKSP") and Salinas Valley State Prison ("SVSP"), failed to properly treat plaintiff's dental problems. The Court previously dismissed the served defendants from NKSP. Docket No. 48. The Court noted that defendants Scanlon, Wittenberg, Edwards, Knorton and Johnson who were involved with treatment at SVSP had not been served and defendants Stark and McQuirter from NKSP had not been served. Plaintiff was ordered to provide additional information so the United States Marshal can serve these defendants.
Plaintiff has provided the address for SVSP and notes that he is no longer at the institution and it is difficult for him to obtain information. Court staff contacted SVSP and contact information was provided for Scanlon and Norton (not Knorton) who can be served at the facility. Confidential addresses were provided for Wittenberg and Johnson. Court staff was unable to obtain information for Edwards and plaintiff provided no information for Stark or McQuirter. Therefore, defendants Edwards, Stark, and McQuirter are dismissed from this action pursuant to Fed.R.Civ.P. 4(m). Service is ordered on Scanlon and Norton at SVSP. By concurrent order, the Court will order service under seal to the confidential addresses for Wittenberg and Johnson.
1. The motion for service (Docket No. 49) is GRANTED. Defendants Edwards, Stark, and McQuirter are DISMISSED from this action.
2. The clerk shall issue a summons and the United States Marshal shall serve, without prepayment of fees, copies of the complaint with attachments and copies of this order on the following defendants: Dr. K Norton and Dr. D. Scanlon at Salinas Valley 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, defendant 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 defendant is of the opinion that this case cannot be resolved by summary judgment, he shall so inform the court prior to the date his 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 defendant 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 defendant files 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 defendant wishes to file a reply brief, he shall do so no later than fifteen days after the opposition is served upon him.
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 defendant, or defendant's counsel once counsel has been designated, by mailing a true copy of the ...