Opinion
Case No. 18-CV-02949 LHK (PR)
10-10-2018
CHARLES W. TOOKER, Plaintiff, v. DEPUTY MICAH MENDEZ, Defendant.
ORDER OF SERVICE
Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint under 42 U.S.C. § 1983. On August 27, 2018, the court found plaintiff's claim that defendant Deputy Micah Mendez violated plaintiff's Sixth Amendment right by reading plaintiff's legal mail stated a cognizable claim for relief but dismissed plaintiff's remaining claims with leave to amend. The court directed plaintiff to file an amended complaint within thirty days or the case would proceed only on plaintiff's Sixth Amendment claim regarding Deputy Mendez's reading of plaintiff's legal mail. Because, the time has passed for plaintiff to file an amended complaint, the case will proceed only on plaintiff's Sixth Amendment claim against Deputy Mendez, and the court orders service upon defendant Deputy Mendez.
CONCLUSION
1. 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 the court's August 27, 2018 order upon Deputy Micah Mendez (#1721) at the Marin County Sheriff's Department at 1600 Los Gamos Dr. #200, San Rafael, CA 94903. The Clerk shall send a courtesy copy of the complaint, the court's August 27, 2018 order and this order to the Marin County Counsel Office at 3501 Civic Center Dr # 275, San Rafael, CA 94903. Additionally, the Clerk shall mail a copy of this order to plaintiff.
2. No later than ninety (90) days from the filing date of this order, defendant shall file a comprehensive motion for summary judgment or other dispositive motion with respect to the cognizable claim in the complaint. Any motion for summary judgment shall be supported by adequate factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil Procedure. A motion for summary judgment also must be accompanied by a separate Rand notice so that plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with motion for summary judgment). Defendant is advised that summary judgment cannot be granted , nor qualified immunity found, if material facts are in dispute. If defendant is of the opinion that this case cannot be resolved by summary judgment, he shall so inform the court prior to the date the summary judgment motion is due.
3. Plaintiff's opposition to the dispositive motion shall be filed with the court and served on defendant no later than twenty-eight (28) days from the date defendant's motion is filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element of his claim).
4. Defendant shall file a reply brief no later than fourteen (14) days after plaintiff's opposition is filed.
5. All communications by plaintiff with the court must be served on defendant, or defendant's counsel, by mailing a true copy of the document to defendant or defendant's counsel.
6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) is required before the parties may conduct discovery.
7. It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address by filing a separate paper with the clerk headed "Notice of Change of Address." He also must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED. DATED: 10/10/2018
/s/_________
LUCY H. KOH
UNITED STATES DISTRICT JUDGE