Bush v. Borla

Opinion

1 2 3 4 5 6 7 10 11 JOEL B. BUSH, Case No. 5:22-cv-00734 EJD (PR)

12 Plaintiff, ORDER OF SERVICE ON DEFENDANT LIZAOLA; 13 v. TERMINATING DEFENDANT ANTONIO; DIRECTING E. BORLA, et al., DISPOSOTIVE MOTION OR Defendants. MOTION; INSTRUCTIONS TO

18 19 Plaintiff, a state prisoner, has filed a pro se civil rights action pursuant to 42 U.S.C. 20 § 1983, alleging violations of his constitutional rights by prison officials at Salinas Valley 21 State Prison (“SVSP”) where he was previously incarcerated. Dkt. No. 1. The Court 22 dismissed the complaint with leave to amend. Dkt. No. 17. Plaintiff filed an amended 23 complaint. Dkt. No. 20. The Court dismissed non-cognizable claims and relevenat 24 Defendants and ordered the matter served on remaining Defendants. Dkt. No. 23. 25 Plaintiff filed a notification indicating that there was an error on the order of 26 service. Dkt. No. 26. On review, the Court finds the order of service ordered the matter 27 served on Correctional Officer J. Antonio in error because all the claims against this 1 on Correctional Officer II V. Lizaola, alongside Defendants Boral and Wade. Id. 2 Accordingly, the Clerk shall terminate Officer Antonio from the docket and serve the 3 matter on Officer Lizaola. 4 6 Based on the foregoing, the Court orders as follows: 7 1. The Clerk shall terminate Defendant Lt. J. Antonio from the docket, as all 8 claims against him have been dismissed. See Dkt. No. 23 at 8. 9 2. The following defendants shall be served at Salinas Valley State Prison: 10 a. Correctional Officer II V. Lizaola 11 Service on the listed defendant(s) shall proceed under the California Department of 12 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 13 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 14 on CDCR via email the following documents: the amended complaint, and any 15 attachments thereto (Dkt. No. 20), a copy of the “Order of Partial Dismissal and of Service 16 (Dkt. No. 23), a copy of this order of service, and a CDCR Report of E-Service Waiver 17 form. The clerk also shall serve a copy of this order on the plaintiff. 18 No later than 40 days after service of this order via email on CDCR, CDCR shall 19 provide the court a completed CDCR Report of E-Service Waiver advising the court which 20 defendant(s) listed in this order will be waiving service of process without the need for 21 service by the United States Marshal Service (USMS) and which defendant(s) decline to 22 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 23 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 24 days, shall file with the court a waiver of service of process for the defendant(s) who are 25 waiving service. 26 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 27 each defendant who has not waived service according to the CDCR Report of E-Service 1 forms and copies of this order, the summons and the operative complaint for service upon 2 each defendant who has not waived service. The clerk also shall provide to the USMS a 3 copy of the CDCR Report of E-Service Waiver. 4 3. No later than ninety-one (91) days from the date this order is filed, 5 Defendants shall file a motion for summary judgment or other dispositive motion with 6 respect to the claims in the amended complaint found to be cognizable. 7 a. Any motion for summary judgment shall be supported by adequate 8 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 9 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 10 qualified immunity found, if material facts are in dispute. If any Defendant is of the 11 opinion that this case cannot be resolved by summary judgment, he shall so inform the 12 Court prior to the date the summary judgment motion is due. 13 b. In the event Defendants file a motion for summary judgment, the 14 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 15 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 16 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 17 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 18 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 19 motion is filed. 20 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 21 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 22 must come forward with evidence showing triable issues of material fact on every essential 23 element of his claim). Plaintiff is cautioned that failure to file an opposition to 24 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 25 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 26 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 27 F.3d 651, 653 (9th Cir. 1994). 1 || Plaintiff's opposition is filed. 2 6. The motion shall be deemed submitted as of the date the reply brief is due. 3 || No hearing will be held on the motion unless the Court so orders at a later date. 4 7. All communications by the Plaintiff with the Court must be served on 5 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 6 || copy of the document to Defendants or Defendants’ counsel. 7 8. Discovery may be taken in accordance with the Federal Rules of Civil 8 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 9 || Rule 16-1 is required before the parties may conduct discovery. 10 9. It is Plaintiffs responsibility to prosecute this case. Plaintiff must keep the 11 || court informed of any change of address and must comply with the court’s orders in a 12 timely fashion. Failure to do so may result in the dismissal of this action for failure to E 13 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). S 14 10. Extensions of time must be filed no later than the deadline sought to be 3 15 || extended and must be accompanied by a showing of good cause. i 17 || Dated: March 14, 2023

18 acke 1. 19 United States District Judge 20 21 22 23 24 25 26 27 28