Tolbert v. Contra Costa County Martinez Detention Facility

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JOEL TOLBERT III, 7 Case No. 21-cv-09673 EJD (PR) Plaintiff, 8 ORDER OF SERVICE ON DEFENDANT MURPHY; 9 v. DIRECTING DEFENDANT TO

FILE DISPOSITIVE MOTION OR 10 NOTICE REGARDING SUCH CONTRA COSTA COUNTY, et al., MOTION; INSTRUCTIONS TO 11 CLERK Defendants. 12

13 14 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 15 U.S.C. § 1983 against officers at the Contra Costa County’s Martinez Detention Facility, 16 where he was formerly confined. The second amended complaint is the operative 17 complaint in this action. Dkt. No. 22. When settlement proceedings were unsuccessful, 18 the Court ordered Defendants to resubmit their motion to dismiss. Dkt. No. 27. The Court 19 later ordered Plaintiff to provide more information for unserved Defendant Sgt. P. Murphy, 20 and requested County Counsel to provide the current employment status and last known 21 address for Defendant Murphy. Dkt. No. 84. 22 Pursuant to a court order, County Counsel subsequently filed information respecting 23 Defendant Murphy’s last known home address under seal. Dkt. No. 87. Accordingly, the 24 Court will order service of this matter on Defendant Murphy at the address provided by 25 County Counsel. 26 27 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 4 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 5 of the second amended complaint, Dkt. No. 22, all attachments thereto, a copy of the 6 “Order of Service,” Dkt. No. 24, and a copy of this order upon Defendant P. Murphy at the 7 address filed under seal by County Counsel. Dkt. No. 87. The Clerk shall ensure that 8 the address is not disclosed to Plaintiff or the public. The Clerk shall also mail a copy 9 of this order to Plaintiff. 10 Defendant Murphy may want to contact the Office of the Contra Costa County 11 Counsel,1 who is representing the other defendants in this action, for the purpose of 12 obtaining representation in this matter. 13 2. Defendant Murphy is cautioned that Rule 4 of the Federal Rules of Civil 14 Procedure requires them to cooperate in saving unnecessary costs of service of the 15 summons and the amended complaint. Pursuant to Rule 4, if Defendant, after being 16 notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the 17 summons, fail to do so, they will be required to bear the cost of such service unless good 18 cause shown for their failure to sign and return the waiver form. If service is waived, this 19 action will proceed as if Defendant had been served on the date that the waiver is filed, 20 except that pursuant to Rule 12(a)(1)(B), Defendant will not be required to serve and file 21 an answer before sixty (60) days from the day on which the request for waiver was sent. 22 (This allows a longer time to respond than would be required if formal service of summons 23 is necessary.) Defendant is asked to read the statement set forth at the foot of the waiver 24 form that more completely describes the duties of the parties with regard to waiver of 25 service of the summons. If service is waived after the date provided in the Notice but 26 before Defendant has been personally served, the Answer shall be due sixty (60) days from 27 1 the date on which the request for waiver was sent or twenty (20) days from the date the 2 waiver form is filed, whichever is later. 3 3. No later than ninety-one (91) days from the date this order is filed, 4 Defendant shall file a motion for summary judgment or other dispositive motion with 5 respect to the claims in the complaint found to be cognizable above. 6 a. Any motion for summary judgment shall be supported by adequate 7 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 8 Civil Procedure. Defendant is advised that summary judgment cannot be granted, nor 9 qualified immunity found, if material facts are in dispute. If any Defendant is of the 10 opinion that this case cannot be resolved by summary judgment, he shall so inform the 11 Court prior to the date the summary judgment motion is due. 12 b. In the event Defendant files a motion for summary judgment, the 13 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 14 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 15 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 16 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 17 and served on Defendant no later than twenty-eight (28) days from the date Defendants’ 18 motion is filed. 19 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 20 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 21 must come forward with evidence showing triable issues of material fact on every essential 22 element of his claim). Plaintiff is cautioned that failure to file an opposition to 23 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 24 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 25 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 26 F.3d 651, 653 (9th Cir. 1994). 27 5. Defendant shall file a reply brief no later than fourteen (14) days after 1 6. The motion shall be deemed submitted as of the date the reply brief is due. 2 || No hearing will be held on the motion unless the Court so orders at a later date. 3 7. All communications by the Plaintiff with the Court must be served on 4 || Defendant, or Defendant’s counsel once counsel has been designated, by mailing a true 5 || copy of the document to Defendant or Defendant’s counsel. 6 8. Discovery may be taken in accordance with the Federal Rules of Civil 7 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 8 || Rule 16-1 1s required before the parties may conduct discovery. 9 9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 10 || court informed of any change of address and must comply with the court’s orders in a 11 || 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). 13 10. Extensions of time must be filed no later than the deadline sought to be S 14 || extended and must be accompanied by a showing of good cause. 15 IT IS SO ORDERED. 16 Dated: May 17, 2024 asDQD. 5 7 EDWARD J. DAVILA United States District Judge Z 18 19 20 21 22 23 24 25 26 27 28