Tamrat v. Marlowe

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HERMAN TAMRAT, Case No. 20-cv-07623-PJH

8 Plaintiff, ORDER OF SERVICE v. 9

10 SONOMA COUNTY DETENTION FACILITY'S ADMINISTRATION, et al., 11 Defendants.

12 13 Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 14 U.S.C. § 1983. The court screened the original complaint and found that plaintiff had 15 stated an excessive force claim against defendants Marlowe and Tamayo but dismissed 16 the remaining claims and defendants with leave to amend. Plaintiff was informed that he 17 could file an amended complaint to present additional allegations or he could continue 18 solely on the excessive force claim against defendants Marlowe and Tamayo. The time 19 to amend had passed and plaintiff has not filed an amended complaint. 20 CONCLUSION 21 1. All claims and defendants are dismissed with prejudice except the excessive 22 force claim against defendants Marlowe and Tamayo as discussed in the court’s prior 23 order (Docket No. 8). The clerk shall issue a summons and the United States Marshal 24 shall serve, without prepayment of fees, copies of the complaint with attachments and 25 copies of this order on Sonoma County Sheriff Deputy A. Marlowe #2495 and Deputy 26 Tamayo at the Sonoma County Main Adult Detention Facility. 27 2. In order to expedite the resolution of this case, the court orders as follows: 1 motion for summary judgment or other dispositive motion. The motion shall be supported 2 by adequate factual documentation and shall conform in all respects to Federal Rule of 3 Civil Procedure 56, and shall include as exhibits all records and incident reports 4 stemming from the events at issue. If defendants are of the opinion that this case cannot 5 be resolved by summary judgment, they shall so inform the court prior to the date the 6 summary judgment motion is due. All papers filed with the court shall be promptly served 7 on the plaintiff. 8 b. At the time the dispositive motion is served, defendants shall also serve, 9 on a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 10 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 11 n. 4 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand 12 and Wyatt notices must be given at the time motion for summary judgment or motion to 13 dismiss for nonexhaustion is filed, not earlier); Rand at 960 (separate paper requirement). 14 c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with 15 the court and served upon defendants no later than thirty days from the date the motion 16 was served upon him. Plaintiff must read the attached page headed "NOTICE -- 17 WARNING," which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953- 18 954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 19 1988). 20 If defendants file a motion for summary judgment claiming that plaintiff failed to 21 exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), 22 plaintiff should take note of the attached page headed "NOTICE -- WARNING 23 (EXHAUSTION)," which is provided to him as required by Wyatt v. Terhune, 315 F.3d 24 1108, 1120 n. 4 (9th Cir. 2003). 25 d. If defendant wishes to file a reply brief, he shall do so no later than 26 fifteen days after the opposition is served upon her. 27 e. The motion shall be deemed submitted as of the date the reply brief is 1 2 3. All communications by plaintiff with the court must be served on defendant, or 3 defendant’s counsel once counsel has been designated, by mailing a true copy of the 4 document to defendants or defendants' counsel. 5 4. Discovery may be taken in accordance with the Federal Rules of Civil 6 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or 7 Local Rule 16 is required before the parties may conduct discovery. 8 5. It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 9 informed of any change of address by filing a separate paper with the clerk headed 10 “Notice of Change of Address.” He also must comply with the court's orders in a timely 11 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 12 pursuant to Federal Rule of Civil Procedure 41(b). 13 IT IS SO ORDERED. 14 Dated: February 26, 2021 15 16 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary 6 judgment. Generally, summary judgment must be granted when there is no genuine issue 7 of material fact--that is, if there is no real dispute about any fact that would affect the 8 result of your case, the party who asked for summary judgment is entitled to judgment as 9 a matter of law, which will end your case. When a party you are suing makes a motion 10 for summary judgment that is properly supported by declarations (or other sworn 11 testimony), you cannot simply rely on what your complaint says. Instead, you must set 12 out specific facts in declarations, depositions, answers to interrogatories, or authenticated 13 documents, as provided in Rule 56(e), that contradict the facts shown in the defendant’s 14 declarations and documents and show that there is a genuine issue of material fact for 15 trial. If you do not submit your own evidence in opposition, summary judgment, if 16 appropriate, may be entered against you. If summary judgment is granted, your case will 17 be dismissed and there will be no trial. 18 NOTICE -- WARNING (EXHAUSTION) 19 If defendants file a motion for summary judgment for failure to exhaust, they are 20 seeking to have your case dismissed. If the motion is granted it will end your case. 21 You have the right to present any evidence you may have which tends to show 22 that you did exhaust your administrative remedies. Such evidence may be in the form of 23 declarations (statements signed under penalty of perjury) or authenticated documents, 24 that is, documents accompanied by a declaration showing where they came from and 25 why they are authentic, or other sworn papers, such as answers to interrogatories or 26 depositions. If defendants file a motion for summary judgment for failure to exhaust and it 27 is granted, your case will be dismissed and there will be no trial.