United States District Court, E.D. California
ORDER AND ORDER DIRECTING SERVICE BY THE UNITED
STATES MARSHAL WITHOUT PREPAYMENT OF COSTS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is proceeding in forma pauperis pursuant to 28 U.S.C. §
1915. By order filed May 19, 2017, the court determined that
service of the complaint is appropriate for defendants
Jackson and Liu and ordered plaintiff to provide information
for service of process on forms USM-285, a completed summons,
sufficient copies of the complaint for service, and a notice
of compliance. Plaintiff has filed the required papers. ECF
No. 16. Accordingly, IT IS HEREBY ORDERED that:
Clerk of the Court is directed to forward to the United
States Marshal the instructions for service of process, the
completed summons, copies of the complaint, copies of the
form Consent to Proceed Before a United States Magistrate
Judge, and copies of this order.
Within fourteen days from the date of this order, the United
States Marshal shall notify defendants Jackson and Liu of the
commencement of this action and request a waiver of service
of summons in accordance with the provisions of Fed.R.Civ.P.
4(d) and 28 U.S.C. § 566(c).
United States Marshal shall retain the sealed summons and a
copy of the complaint in its file for future use.
United States Marshal shall file returned waivers of service
of summons as well as any requests for waivers that are
returned as undelivered as soon as they are received.
5. If a
defendant waives service, the defendant is required to return
the signed waiver to the United States Marshal. The filing of
an answer or a responsive motion does not relieve a defendant
of this requirement, and the failure to return the signed
waiver may subject a defendant to an order to pay the costs
of service pursuant to Fed.R.Civ.P. 4(d)(2).
6. If a
defendant does not return a waiver of service of summons
within sixty days from the date of mailing the request for
waiver, the United States Marshal shall:
a. Personally serve process and a copy of this order on the
defendant in accordance with Fed.R.Civ.P. 4 and 28 U.S.C.
§ 566(c) and shall command all necessary assistance from
the California Department of Corrections and Rehabilitation
(CDCR) or any last known employer of a defendant to execute
this order. The United States Marshal shall maintain the
confidentiality of all information so provided pursuant to
b. File, within fourteen days after personal service is
effected, the return of service, along with evidence of any
attempts to secure a waiver of service of summons and of the
costs subsequently incurred in effecting service on the
defendant. Such costs shall be enumerated on the USM-285 form
and shall include the costs incurred by the United States
Marshal's office for photocopying additional copies of
the summons and complaint and for preparing new USM-285
forms, if required. Costs of service will be taxed against
the personally served defendant in accordance with the
provisions of Fed.R.Civ.P. 4(d)(2).
Defendants shall reply to the complaint within the time
provided in Fed.R.Civ.P. 12(a).
Unless otherwise ordered, all motions to dismiss, motions for
summary judgment, motions concerning discovery, motions
pursuant to Fed.R.Civ.P. 7, 11, 12, 15, 41, 55, 56, 59 and
60, and E.D. Cal. R. 110, shall be briefed pursuant to L.R.
230(1). Failure to timely oppose such a motion may be deemed
a waiver of opposition to the motion. See L.R.
230(1). Opposition to all other motions need be filed only as
directed by the court.
plaintiff is released from prison while this case is pending,
any party may request application of the other provisions of
L.R. 230 in lieu of L.R. 230(1). Until such a motion is
granted, L.R. 230(1) will govern all motions described in #8
above regardless of plaintiff's custodial status.
See L.R. 102(d).
Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th
Cir. 1998) (en banc), and Klingele v. Eikenberry,
849 F.2d 409 (9th Cir. 1988), the court hereby informs
plaintiff of the following requirements for opposing a motion
for summary judgment pursuant to Fed.R.Civ.P. 56. Such a
motion is a request for an order for judgment in favor of the
defendant without trial. A defendant's motion for summary
judgment will set forth the facts that the defendant contends
are not reasonably subject to dispute and that entitle the
defendant to judgment. To oppose a motion for summary
judgment, plaintiff must show proof of his or her claims.
Plaintiff may do this in one or more of the following ways.
Plaintiff may rely on plaintiff's statements made under
penalty of perjury in the complaint if the complaint shows
that plaintiff has personal knowledge of the matters stated
and plaintiff specifies those parts of the complaint on which
plaintiff relies. Plaintiff may serve and file one or more
affidavits or declarations setting forth the facts that
plaintiff believes prove plaintiff's claims; the person
who signs an affidavit or declaration must have personal
knowledge of the facts stated. Plaintiff may rely on written
records, but plaintiff must prove that the records are what
plaintiff asserts they are. Plaintiff may rely on all or any
part of the transcript of one or more depositions, answers to
interrogatories, or admissions obtained in this proceeding.
If plaintiff fails to contradict the defendant's evidence
with counteraffidavits or other admissible evidence, the
court may accept defendant's evidence as true and grant
the motion. If there is some good reason why such facts are
not available to plaintiff when required to oppose a motion
for summary judgment, the court will consider a request to
postpone consideration of the ...