Saddozai v. Bolanos

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, 11 Case No. 18-03972 BLF (PR) Plaintiff, 12 ORDER GRANTING MOTION FOR SUBSTITUTION OF PARTY; OF v. 13 SERVICE; DIRECTING

DEFENDANT TO FILE 14 A. ARQUEZA, DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 15 Defendant. MOTION; INSTRUCTIONS TO CLERK 16

17 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983. The Court reopened this matter on remand and requested San Mateo 20 County Counsel to identify the successor to deceased Defendant Deputy A. Arqueza. Dkt. 21 No. 50. County Counsel has filed notice, stating that he believes Terry Arqueza is 22 Defendant A. Arqueza’s widow and that no other known adult could be Deputy Arqueza’s 23 personal successor or representative. Dkt. No. 51. County Counsel also states his 24 intention to accept service for Ms. Arqueza at his address. Id. Accordingly, the Court 25 construes the notice as a motion for substitution under Rule 25(a) of the Federal Rules of 26 Civil Procedure and grants the motion. This matter shall be served on Ms. Arqueza at the 27 address provided by County Counsel. 1 CONCLUSION 2 For the reasons state above, the Court orders as follows: 3 1. Deceased Defendant A. Arqueza shall be substituted by his successor, Ms. 4 Terry Arqueza in this action. The Clerk shall update the docket accordingly. This action 5 will proceed on the Eighth Amendment claims for excessive force, deliberate indifference 6 to serious medical needs, and unsanitary conditions, as well as a due process claim for an 7 allegedly false and unjustified disciplinary action as discussed in the Court’s Order filed on 8 December 16, 2019. Dkt. No. 27 at 2-3. 9 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 10 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 11 of the second amended complaint, Dkt. No. 23, all attachments thereto, a copy of court’s 12 screening order, Dkt. No. 27, and a copy of this order upon Defendant Terry Arqueza at 13 the San Mateo County Counsel’s office (400 County Center, 6th Floor, Redwood City, CA 14 94063). The Clerk shall also mail a copy of this Order to Plaintiff. 15 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 16 Procedure requires them to cooperate in saving unnecessary costs of service of the 17 summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this 18 action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail 19 to do so, they will be required to bear the cost of such service unless good cause shown for 20 their failure to sign and return the waiver form. If service is waived, this action will 21 proceed as if Defendants had been served on the date that the waiver is filed, except that 22 pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer 23 before sixty (60) days from the day on which the request for waiver was sent. (This 24 allows a longer time to respond than would be required if formal service of summons is 25 necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 26 form that more completely describes the duties of the parties with regard to waiver of 1 before Defendants have been personally served, the Answer shall be due sixty (60) days 2 from the date on which the request for waiver was sent or twenty (20) days from the date 3 the waiver form is filed, whichever is later. 4 4. 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 complaint found to be cognizable above. 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 5. 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 1 6. Defendants shall file a reply brief no later than fourteen (14) days after 2 || Plaintiff's opposition is filed. 3 7. The motion shall be deemed submitted as of the date the reply brief is due. 4 || No hearing will be held on the motion unless the Court so orders at a later date. 5 8. All communications by the Plaintiff with the Court must be served on 6 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 7 || copy of the document to Defendants or Defendants’ counsel. 8 9. Discovery may be taken in accordance with the Federal Rules of Civil g || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 10 || Rule 16-1 is required before the parties may conduct discovery. 11 10. ‘It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the || court informed of any change of address and must comply with the court’s orders in a E 13 || timely fashion. Failure to do so may result in the dismissal of this action for failure to S 14 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 3 15 11. | Extensions of time must be filed no later than the deadline sought to be A 16 || extended and must be accompanied by a showing of good cause. IT IS SO ORDERED 5 18 || Dated: — June27,2022.__ beh Lows aman BETH LABSON FREEMAN 19 United States District Judge 20 21 22 23 24 25 || Order Subst. Party; of Service PRO-SE\BLF\CR.18\03972Saddozai_svc.substitute 26 27