Opinion
Case No: 3:07cv85/RV/MD.
August 15, 2007
ORDER
Plaintiff, an inmate proceeding pro se and in forma pauperis, has filed his amended complaint and the appropriate number of service copies as directed by the court. Service of the complaint shall therefore be ordered, and the defendants shall be required to respond. Plaintiff shall not file any reply to the defendants' response until ordered to do so by the court.
Accordingly, it is ORDERED:
1. The docket shall reflect that there are two defendants in this action: C.L. Hall and R.A. Cowan. Plaintiff shall have ten days from the date of this order in which to notify the court if this is incorrect.
2. The clerk shall issue summonses, indicating that defendants have 60 days in which to file a responsive pleading (which in this case will be a motion for summary judgment or special report as detailed infra), and refer the summonses to the United States Marshal along with the service copies of the complaint.
3. The clerk shall also send the Marshal a copy of this order for each of the defendants.
4. Pursuant to Rule 4(c), Federal Rules of Civil Procedure, David Dunlap is specially appointed to serve process upon defendants at Santa Rosa Correctional Institution.
5. Within thirty (30) days from the docketing date of this order, the United States Marshal or a Deputy United States Marshal shall serve a summons, a copy of the amended civil rights complaint and this order upon each defendant. Service shall be accomplished by mailing these documents by regular mail to the above named special process server, who shall serve the amended complaint. All costs of service shall be advanced by the United States.
6. Within ten (10) days after receipt of the amended complaint and this order, the special process server shall serve the amended complaint upon the individuals named above, complete and sign the return of service, and return it to the clerk of court as proof of service. The defendants shall also sign the return of service as an acknowledgment of receipt of service.
7. Within ten (10) days after receipt of the amended complaint and this order, if any defendant is no longer employed at the Institution, the server shall report this information to the clerk of the court. If service is returned unexecuted, or if a return is not filed within forty-five (45) days from the date of this order, the clerk shall immediately refer the file to chambers.
8. Upon receipt of the complaint, the defendants shall review the subject matter of the complaint in order to:
a. Ascertain the facts and circumstances surrounding the complaint;
b. Consider whether any action should be taken directly by prison officials to resolve the issues raised in the complaint; and
c. Determine whether other, similar complaints, whether pending in this court or elsewhere, should be considered together.
9. Within sixty (60) days of receipt of the summonses, defendants shall respond to the complaint either by filing a motion for summary judgment based on plaintiff's failure to exhaust administrative remedies or by filing a special report with the court, and a copy thereof to plaintiff, containing the following:
a. Sworn statements of all persons having knowledge and relevant information of the subject matter of the complaint. (Authorization is hereby granted to interview all witnesses to the events of the complaint, including the plaintiff.)
b. Copies of any written reports prepared as a result of investigation of the inmate's allegations.
c. All defenses, including immunity defenses. If not listed, such defenses may be considered waived.
d. Where relevant, copies of medical or psychological or disciplinary records.
e. Where applicable, copies of relevant administrative rules, regulations or guidelines.
The defendants are advised that, at some time in the future upon notice of the court, the special report may be deemed a motion for summary judgment. Therefore, in addition to the above-mentioned items, the special report shall be in compliance with Local Rule 56.1, and shall include all FED.R.CIV.P. 56 materials the defendants wish the court to consider.
The special report must contain a short and concise statement of the material facts and shall not merely reassert plaintiff's allegations.
10. No answer, motion to dismiss, motion for summary judgment, or request for discovery shall be served or filed by any party without permission of the court, except as set forth above.
11. Plaintiff shall not file a reply to defendants' motion for summary judgment or special report until ordered to do so by the court.
12. Once a special report is filed, no amendments to the complaint shall be permitted by the court unless, as required by Rule 15 of the Federal Rules, the plaintiff files a separate motion for leave to so amend and provides a copy of the proposed amended complaint.
13. After the special report or other response to the complaint has been filed, the plaintiff shall be required to mail to the attorney for each defendant a copy of every pleading or other paper, including letters, submitted for consideration by the court. The plaintiff shall include with the original paper to be filed with the Clerk a "certificate of service" stating the date a correct copy of the paper was mailed to the defendant or to the attorney representing the defendant. Any paper so submitted for filing that does not contain a "certificate of service" shall be returned by the clerk and disregarded by the court.
14. In accordance with 28 U.S.C. § 636(c)(2), the clerk shall forward to the plaintiff a form for consenting to trial by the magistrate judge, with the case number written on it. If plaintiff wishes to consent he should sign the form and forward it to counsel for a defendant, who, if defendant consents, shall sign and forward it to counsel for the other defendant, who shall return it to the clerk only if that defendant also consents.
15. In any event, the clerk shall return the file to chambers within 45 days from the date of this order.
DONE AND ORDERED.