Tamrat v. Marlowe

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA HERMAN TAMRAT, Case No. 20-cv-07623-PJH 8 Plaintiff, ORDER OF SERVICE v. 10 SONOMA COUNTY DETENTION FACILITY'S ADMINISTRATION, et al., Defendants.

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 stated an excessive force claim against defendants Marlowe and Tamayo but dismissed the remaining claims and defendants with leave to amend. Plaintiff was informed that he could file an amended complaint to present additional allegations or he could continue solely on the excessive force claim against defendants Marlowe and Tamayo. The time 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 force claim against defendants Marlowe and Tamayo as discussed in the court’s prior order (Docket No. 8). The clerk shall issue a summons and the United States Marshal shall serve, without prepayment of fees, copies of the complaint with attachments and copies of this order on Sonoma County Sheriff Deputy A. Marlowe #2495 and Deputy 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: motion for summary judgment or other dispositive motion. The motion shall be supported by adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56, and shall include as exhibits all records and incident reports stemming from the events at issue. If defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the court prior to the date the summary judgment motion is due. All papers filed with the court shall be promptly served on the plaintiff.

8 b. At the time the dispositive motion is served, defendants shall also serve, 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 n. 4 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be given at the time motion for summary judgment or motion to 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 the court and served upon defendants no later than thirty days from the date the motion was served upon him. Plaintiff must read the attached page headed "NOTICE -- WARNING," which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953- 954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

20 If defendants file a motion for summary judgment claiming that plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take note of the attached page headed "NOTICE -- WARNING (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 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 2 3. All communications by plaintiff with the court must be served on defendant, or defendant’s counsel once counsel has been designated, by mailing a true copy of the document to defendants or defendants' counsel.

5 4. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or 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 informed of any change of address by filing a separate paper with the clerk headed “Notice of Change of Address.” He also must comply with the court's orders in a 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 IT IS SO ORDERED.

14 Dated: February 26, 2021 16 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 17 United States District Judge NOTICE -- WARNING (SUMMARY JUDGMENT) If defendants move for summary judgment, they are seeking to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.

Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact--that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.

NOTICE -- WARNING (EXHAUSTION) If defendants file a motion for summary judgment for failure to exhaust, they are seeking to have your case dismissed. If the motion is granted it will end your case.

You have the right to present any evidence you may have which tends to show that you did exhaust your administrative remedies. Such evidence may be in the form of declarations (statements signed under penalty of perjury) or authenticated documents, that is, documents accompanied by a declaration showing where they came from and why they are authentic, or other sworn papers, such as answers to interrogatories or depositions. If defendants file a motion for summary judgment for failure to exhaust and it is granted, your case will be dismissed and there will be no trial.