United States District Court, N.D. California
SERVICE ORDER DOCKET NO. 1
EDWARD
M. CHEN, UNITED STATES DISTRICT JUDGE
On
September 20, 2019, the Court reviewed the complaint in this
action and determined that, liberally construed, the
complaint stated a cognizable claim against C/O Smith, C/O
Waterman, and correctional sergeant Beam for deliberate
indifference to plaintiff's safety. Docket No. 10 at 2.
The Court also determined that the complaint did not state a
claim against psychologist Salvidav, C/O Seveda, C/O Lucio,
and C/O Gutierrez, and granted Plaintiff leave to file an
amended complaint no later than October 31, 2019 to try to
state a claim against these Defendants. Id. at 2-3.
The Court also explained that “[f]ailure to file the
amended complaint by the deadline will result in the
dismissal of defendants against whom a claim is not
stated.” Id. at 4. Plaintiff did not file an
amended complaint and the deadline by which to do so has
passed. It therefore is now time to move forward with the one
claim that was stated.
Accordingly,
1. The complaint, liberally construed, states a cognizable
§ 1983 claim against C/O Smith, C/O Waterman, and
correctional sergeant Beam for deliberate indifference to
Plaintiff's safety. All other claims and Defendants are
dismissed.
2. The
Clerk shall issue a summons and the United States Marshal
shall serve, without prepayment of fees, the summons, a copy
of the complaint and a copy of all the documents in the case
file upon the following persons who work at Salinas Valley
State Prison:
- ISU correctional officer T. Smith
- ISU correctional officer W. Waterman
- correctional sergeant E. Beam
3. In
order to expedite the resolution of this case, the following
briefing schedule for dispositive motions is set:
a. No
later than February 14, 2020, Defendants
must file and serve a motion for summary judgment or other
dispositive motion. If Defendants are of the opinion that
this case cannot be resolved by summary judgment, Defendants
must so inform the Court prior to the date the motion is due.
If Defendants file a motion for summary judgment, Defendants
must provide to Plaintiff a new Rand notice
regarding summary judgment procedures at the time they file
such a motion. See Woods v. Carey, 684 F.3d 934, 939
(9th Cir. 2012).
b.
Plaintiff's opposition to the summary judgment or other
dispositive motion must be filed with the Court and served
upon Defendants no later than March 13,
2020. Plaintiff must bear in mind the notice and
warning regarding summary judgment provided later in this
order as he prepares his opposition to any motion for summary
judgment.
c. If
Defendants wish to file a reply brief, the reply brief must
be filed and served no later than March 27,
2020.
4.
Plaintiff is provided the following notices and warnings
about the procedures for motions for summary judgment:
The defendants may make a motion for summary judgment by
which they seek to have your case dismissed. A motion for
summary judgment under Rule 56 of the Federal Rules of Civil
Procedure will, if granted, end your case. . . . Rule 56
tells you what you must do in order to oppose a motion for
summary judgment. Generally, summary judgment must be granted
when there is no genuine issue of material fact -- that is,
if there is no real dispute about any fact that would affect
the result of your case, the party who asked for summary
judgment is entitled to judgment as a matter of law, which
will end your case. When a party you are suing makes a motion
for summary judgment that is properly supported by
declarations (or other sworn testimony), you cannot simply
rely on what your complaint says. Instead, you must set out
specific facts in declarations, depositions, answers to
interrogatories, or authenticated documents, as provided in
Rule 56(e), that contradict the facts shown in the
defendants' declarations and documents and show that
there is a genuine issue of material fact for trial. If you
do not submit your own evidence in opposition, summary
judgment, if appropriate, may be entered against you. If
summary judgment is granted, your case will be dismissed and
there will be no trial. Rand v. Rowland, 154 F.3d
952, 962-63 (9th Cir. 1998).
If
Defendants file a motion for summary judgment for failure to
exhaust administrative remedies, they are seeking to have the
case dismissed. As with other defense summary judgment
motions, if a motion for summary judgment for failure to
exhaust administrative ...