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Lomack v. Beam

United States District Court, N.D. California

December 10, 2019

KENNETH LOMACK, Plaintiff,
v.
E. BEAM, et al., Defendants.

          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 ...


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