Lomack v. Beam ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENNETH LOMACK, Case No. 19-cv-02943-EMC 8 Plaintiff, SERVICE ORDER 9 v. Docket No. 1 10 E. BEAM, et al., 11 Defendants. 12 13 On September 20, 2019, the Court reviewed the complaint in this action and determined 14 that, liberally construed, the complaint stated a cognizable claim against C/O Smith, C/O 15 Waterman, and correctional sergeant Beam for deliberate indifference to plaintiff’s safety. Docket 16 No. 10 at 2. The Court also determined that the complaint did not state a claim against 17 psychologist Salvidav, C/O Seveda, C/O Lucio, and C/O Gutierrez, and granted Plaintiff leave to 18 file an amended complaint no later than October 31, 2019 to try to state a claim against these 19 Defendants. Id. at 2-3. The Court also explained that “[f]ailure to file the amended complaint by 20 the deadline will result in the dismissal of defendants against whom a claim is not stated.” Id. at 4. 21 Plaintiff did not file an amended complaint and the deadline by which to do so has passed. It 22 therefore is now time to move forward with the one claim that was stated. 23 Accordingly, 24 1. The complaint, liberally construed, states a cognizable § 1983 claim against C/O 25 Smith, C/O Waterman, and correctional sergeant Beam for deliberate indifference to Plaintiff’s 26 safety. All other claims and Defendants are dismissed. 27 2. The Clerk shall issue a summons and the United States Marshal shall serve, without 1 case file upon the following persons who work at Salinas Valley State Prison: 2 - ISU correctional officer T. Smith - ISU correctional officer W. Waterman 3 - correctional sergeant E. Beam 4 3. In order to expedite the resolution of this case, the following briefing schedule for 5 dispositive motions is set: 6 a. No later than February 14, 2020, Defendants must file and serve a motion 7 for summary judgment or other dispositive motion. If Defendants are of the opinion that this case 8 cannot be resolved by summary judgment, Defendants must so inform the Court prior to the date 9 the motion is due. If Defendants file a motion for summary judgment, Defendants must provide to 10 Plaintiff a new Rand notice regarding summary judgment procedures at the time they file such a 11 motion. See Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012). 12 b. Plaintiff's opposition to the summary judgment or other dispositive motion 13 must be filed with the Court and served upon Defendants no later than March 13, 2020. Plaintiff 14 must bear in mind the notice and warning regarding summary judgment provided later in this 15 order as he prepares his opposition to any motion for summary judgment. 16 c. If Defendants wish to file a reply brief, the reply brief must be filed and 17 served no later than March 27, 2020. 18 4. Plaintiff is provided the following notices and warnings about the procedures for 19 motions for summary judgment: 20 The defendants may make a motion for summary judgment by which they seek to have your case dismissed. A motion for 21 summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. . . . Rule 56 tells you what 22 you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no 23 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 24 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 25 makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on 26 what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or 27 authenticated documents, as provided in Rule 56(e), that contradict not submit your own evidence in opposition, summary judgment, if 1 appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. Rand 2 v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998). 3 || If Defendants file a motion for summary judgment for failure to exhaust administrative remedies, 4 || they are seeking to have the case dismissed. As with other defense summary judgment motions, if 5 a motion for summary judgment for failure to exhaust administrative remedies is granted, 6 || Plaintiff's case will be dismissed and there will be no trial. 7 5. All communications by Plaintiff with the Court must be served on Defendants’ 8 || counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard 9 ||} any document which a party files but fails to send a copy of to his opponent. Until a defendant’s 10 || counsel has been designated, Plaintiff may mail a true copy of the document directly to the 11 defendant, but once a defendant is represented by counsel, all documents must be mailed to 12 || counsel rather than directly to the party. 5 13 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 14 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 3 15 before the parties may conduct discovery. 16 7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 3 17 Court informed of any change of address and must comply with the Court's orders in a timely 18 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 19 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 20 || pending case every time he is moved to a new facility. 21 8. Plaintiff is cautioned that he must include the case name and case number for this 22 || case on any document he submits to the Court for consideration in this case. 23 IT IS SO ORDERED. 24 25 Dated: December 10, 2019 26 <4 28 ED M. CHEN United States District Judge