United States District Court, N.D. California
GREGORY P. TURNER, Plaintiff,
H. GASCA, et al., Defendants.
ORDER OF SERVICE
NATHANAEL M. COUSINS, UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed a
civil rights complaint, pursuant to 42 U.S.C. §
1983. Plaintiff has been granted leave to
proceed in forma pauperis in a separate order. For the
reasons that follow, the Court orders service upon
Standard of Review
federal court must engage in a preliminary screening of any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity. 28
U.S.C. § 1915A(a). In its review the court must identify
any cognizable claims, and dismiss any claims which are
frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2). Pro se pleadings must be liberally construed.
See Balistreri v. Pacifica Police Dep't, 901
F.2d 696, 699 (9th Cir. 1990).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated and
(2) that the violation was committed by a person acting under
the color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988).
construing Plaintiff's complaint, Plaintiff has stated a
cognizable claim that Defendants used excessive force upon
him in violation of the Eighth Amendment.
Clerk of the Court shall mail a Notice of Lawsuit and Request
for Waiver of Service of Summons, two copies of the Waiver of
Service of Summons, a copy of the complaint and all
attachments thereto, a magistrate judge jurisdiction consent
form, and a copy of this order to Correctional Officers H.
Gasca and A. Perez at Salinas Valley State Prison. The Clerk
of the Court shall also mail a courtesy copy of the complaint
and a copy of this order to the California Attorney
General's Office. Additionally, the Clerk shall mail a
copy of this order to Plaintiff.
Defendants are cautioned that Rule 4 of the Federal Rules of
Civil Procedure requires her to cooperate in saving
unnecessary costs of service of the summons and complaint.
Pursuant to Rule 4, if Defendants, after being notified of
this action and asked by the court, on behalf of Plaintiff,
to waive service of the summons, fail to do so, they will be
required to bear the cost of such service unless good cause
be shown for their failure to sign and return the waiver
form. If service is waived, Defendants will be required to
serve and file an answer within sixty (60) days from the date
on which the request for waiver was sent to them. Defendants
are asked to read the statement set forth at the bottom of
the waiver form that more completely describes the duties of
the parties with regard to waiver of service of the summons.
If service is waived after the date provided in the Notice
but before Defendants have been personally served, the Answer
shall be due sixty (60) days from the date on which the
request for waiver was sent or twenty (20) days from the date
the waiver form is filed, whichever is later.
later than sixty (60) days from the date the waivers are sent
from the court, Defendants shall file a motion for summary
judgment or other dispositive motion with respect to the
cognizable claims in the complaint. At that time, Defendants
shall also submit the magistrate judge jurisdiction consent
form. Any motion for summary judgment shall be supported by
adequate factual documentation and shall conform in all
respects to Rule 56 of the Federal Rules of Civil Procedure.
A motion for summary judgment also must be accompanied by a
Rand notice so that Plaintiff will have fair, timely
and adequate notice of what is required of him in order to
oppose the motion. Woods v. Carey, 684 F.3d 934, 939
(9th Cir. 2012) (notice requirement set out in Rand v.
Rowland, 154 F.3d 952 (9th Cir. 1998), must be served
concurrently with motion for summary judgment). Defendants
are advised that summary judgment cannot be granted, nor
qualified immunity found, if material facts are in dispute.
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.
Plaintiff's opposition to the dispositive motion shall be
filed with the court and served on Defendants no later than
twenty-eight (28) days from the date Defendants' motion
is filed. Plaintiff is advised to read Rule 56 of the Federal
Rules of Civil Procedure and Celotex Corp. v. Catrett,
477 U.S. 317 (1986) (holding party opposing summary
judgment must come forward with evidence showing triable
issues of material fact on every essential element of his
Defendants shall file a reply brief no later than fourteen
(14) days ...