Andrews v. Aurelio et al
Filing
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ORDER TO REISSUE SERVICE. Signed by Judge Lucy H. Koh on 8/22/12. (Attachments: # 1 cert of service)(mpb, COURT STAFF) (Filed on 8/23/2012) (Additional attachment(s) added on 8/23/2012: # 2 correct certificate of service) (mpb, COURT STAFF).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DAVID RAYMOND ANDREWS,
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Plaintiff,
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v.
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J. AURELIO, et al.,
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Defendants.
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No. C 11-2526 LHK (PR)
ORDER TO REISSUE SERVICE
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Plaintiff, a state prisoner proceeding pro se, filed a second amended civil rights
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complaint pursuant to 42 U.S.C. § 1983. On June 27, 2012, the Court advised Plaintiff that it
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was his responsibility to provide the information necessary to locate Defendants J. Aurelio, R.
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Carriedo, and H. Ortiz. The Court also requested that the Litigation Coordinator at Pelican Bay
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State Prison provide more information about the employment status of Defendants J. Aurelio, R.
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Carriedo, and H. Ortiz. On July 18, 2012, counsel for Defendants contacted the Litigation
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Coordinator to obtain this additional information. (Docket No. 43.) Counsel was provided with
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the following:
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1.
Defendants J. Aurelio and H. Ortiz are Correctional Counselor I’s at California
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Substance Abuse and Treatment Facility located at 900 Quebac Avenue,
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Corcoran, California 93212; and
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2.
Defendant R. Carriedo is a Classification Staff Representative in the
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Classification Services Unit. The headquarters for the Classification Services
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Unit is located at 155 S. Street, Room 300 N, Sacramento, CA 95811
Order to Re-Issue Service
G:\PRO-SE\SJ.LHK\CR.11\Andrews526reissueUnservDs.wpd
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Given the additional information provided for the unserved Defendants, the Court orders
the following:
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The Clerk of the Court is directed to mail a Notice of Lawsuit and Request for
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Waiver of Service of Summons, two copies of the Wavier of Service of Summons, a copy of the
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second amended complaint and all attachments thereto, and a copy of this order to Defendant J.
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Aurelio, Correctional Counselor I and Defendant H. Ortiz, Correctional Counselor I at
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California Substance Abuse and Treatment Facility located at 900 Quebac Avenue,
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Corcoran, California 93212 and Defendant R. Carriedo, Classification Staff Representative
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at Classification Services Unit, CDCR, 155 S. Street, Room 300 N, Sacramento, CA 95811.
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2.
The Clerk of the Court shall also mail a courtesy copy of the second amended
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complaint and a copy of this Order to Donn Robert Duncan, II, 455 Golden Gate Ave., Suite
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11000, San Francisco, CA 94102
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3.
Additionally, the Clerk shall mail a copy of this Order to the Plaintiff.
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4.
Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure
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requires them to cooperate in saving unnecessary costs of service of the summons and complaint.
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Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on
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behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear
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the cost of such service unless good cause be shown for their failure to sign and return the waiver
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form. If service is waived, this action will proceed as if Defendants had been served on the date
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that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required
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to serve and file an answer before sixty (60) days from the date on which the request for waiver
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was sent. (This allows a longer time to respond than would be required if formal service of
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summons is necessary.) Defendants are asked to read the statement set forth at the foot of the
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waiver form that more completely describes the duties of the parties with regard to waiver of
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service of the summons. If service is waived after the date provided in the Notice but before
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Defendants have been personally served, the Answer shall be due sixty (60) days from the date
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on which the request for waiver was sent or twenty (20) days from the date the waiver form is
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filed, whichever is later.
Order to Re-Issue Service
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5.
No later than ninety (90) days from the date of this order, Defendants shall file a
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motion for summary judgment or other dispositive motion with respect to the cognizable claims
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in the second amended complaint.
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a.
If Defendants elect to file a motion to dismiss on the grounds that Plaintiff
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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),
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Defendant shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315
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F.3d 1108, 1119-20 (9th Cir. 2003).
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b.
Any motion for summary judgment shall be supported by adequate factual
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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil
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Procedure. Defendants are advised that summary judgment cannot be granted, nor
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qualified immunity found, if material facts are in dispute. If Defendants are of the opinion
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that this case cannot be resolved by summary judgment, they shall so inform the Court
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prior to the date the summary judgment motion is due.
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6.
Plaintiff’s opposition to the dispositive motion shall be filed with the Court and
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served on Defendants no later than thirty (30) days from the date Defendants’ motion is filed.
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Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v.
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Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come forward
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with evidence showing triable issues of material fact on every essential element of his claim).
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Plaintiff is cautioned that failure to file an opposition to Defendants’ motion for summary
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judgment may be deemed to be a consent by Plaintiff to the granting of the motion, and granting
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of judgment against Plaintiff without a trial. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.
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1995) (per curiam); Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994).
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7.
Defendants shall file a reply brief no later than fifteen (15) days after Plaintiff’s
opposition is filed.
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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.
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It is Plaintiff’s responsibility to prosecute his case. It is Plaintiff’s responsibility
to prosecute this case. Plaintiff must keep the Court and all parties informed of any change of
Order to Re-Issue Service
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address and must comply with the Court’s orders in a timely fashion. Failure to do so may result
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in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure
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41(b).
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IT IS SO ORDERED.
DATED: 8/22/12
LUCY H. KOH
United States District Judge
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Order Directing Plaintiff to provide more info.
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