Tolbert v. Holland ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JOEL TOLBERT III, 7 Case No. 22-cv-03546 EJD (PR) Plaintiff, 8 ORDER OF SERVICE ON DEFENDANT GAMBA; 9 v. DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR 10 NOTICE REGARDING SUCH CONTRA COSTA COUNTY MOTION; INSTRUCTIONS TO 11 MARTINEZ FACILITY, et al., CLERK 12 Defendants. 13 14 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 15 pursuant to 42 U.S.C. § 1983 against officers at the Martinez Detention Facility in Contra 16 Costa County, where he was formerly housed as a pretrial detainee. The amended 17 complaint is the operative complaint in this action. Dkt. No. 13. The Court ordered 18 Defendants to file a dispositive motion or notice regarding such motion on April 27, 2023. 19 Dkt. No. 16. County Counsel filed notice that Defendant Deputy Gamba was no longer 20 employed by Contra Costa County and had not been served. Dkt. No. 17. Pursuant to a 21 court order, County Counsel subsequently filed information respecting Defendant Gamba’s 22 last known home address under seal. Dkt. Nos. 32, 33. Accordingly, the Court will order 23 service of this matter on Defendant Gamba at the address provided by County Counsel. 24 25 CONCLUSION 26 For the foregoing reasons, the Court orders as follows: 27 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 1 of the amended complaint, Dkt. No. 13, all attachments thereto, a copy of the “Order of 2 Partial Dismissal and of Service of First Amended Complaint,” Dkt. No. 16, and a copy of 3 this order upon Defendant Deputy Gamba at the address filed under seal by County 4 Counsel. Dkt. No. 32. The Clerk shall ensure that the address is not disclosed to 5 Plaintiff or the public. The Clerk shall also mail a copy of this order to Plaintiff. 6 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 7 Procedure requires them to cooperate in saving unnecessary costs of service of the 8 summons and the amended complaint. Pursuant to Rule 4, if Defendants, after being 9 notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the 10 summons, fail to do so, they will be required to bear the cost of such service unless good 11 cause shown for their failure to sign and return the waiver form. If service is waived, this 12 action will proceed as if Defendants had been served on the date that the waiver is filed, 13 except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file 14 an answer before sixty (60) days from the day on which the request for waiver was sent. 15 (This allows a longer time to respond than would be required if formal service of summons 16 is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 17 form that more completely describes the duties of the parties with regard to waiver of 18 service of the summons. If service is waived after the date provided in the Notice but 19 before Defendants have been personally served, the Answer shall be due sixty (60) days 20 from the date on which the request for waiver was sent or twenty (20) days from the date 21 the waiver form is filed, whichever is later. 22 3. No later than ninety-one (91) days from the date this order is filed, 23 Defendants shall file a motion for summary judgment or other dispositive motion with 24 respect to the claims in the amended complaint found to be cognizable above. 25 a. Any motion for summary judgment shall be supported by adequate 26 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 27 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 1 opinion that this case cannot be resolved by summary judgment, he shall so inform the 2 Court prior to the date the summary judgment motion is due. 3 b. In the event Defendants file a motion for summary judgment, the 4 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 5 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 6 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 7 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 8 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 9 motion is filed. 10 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 11 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 12 must come forward with evidence showing triable issues of material fact on every essential 13 element of his claim). Plaintiff is cautioned that failure to file an opposition to 14 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 15 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 16 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 17 F.3d 651, 653 (9th Cir. 1994). 18 5. Defendants shall file a reply brief no later than fourteen (14) days after 19 Plaintiff’s opposition is filed. 20 6. The motion shall be deemed submitted as of the date the reply brief is due. 21 No hearing will be held on the motion unless the Court so orders at a later date. 22 7. All communications by the Plaintiff with the Court must be served on 23 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 24 copy of the document to Defendants or Defendants’ counsel. 25 8. Discovery may be taken in accordance with the Federal Rules of Civil 26 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 27 Rule 16-1 is required before the parties may conduct discovery. 1 |} court informed of any change of address and must comply with the court’s orders in a 2 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 3 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 4 10. Extensions of time must be filed no later than the deadline sought to be 5 || extended and must be accompanied by a showing of good cause. 6 IT IS SO ORDERED. 7 || Dated: September 5, 2023 g EDWARD J. DAVILA United States District Judge 9 10 11 12 2B «14 15 16 Oo Z 18 19 20 21 22 23 24 25 26 27 28