1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MICHAEL A. SHEPHARD, Case No. 21-cv-02748-JD

7 Plaintiff, ORDER OF SERVICE v. 8

9 BRIGHT, Defendant. 10

11 12 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under

. 13 He seeks money damages regarding his medical treatment. The Court ordered service on the 14 second amended complaint with respect to Dr. Bright’s failure to approve necessary medication to 15 treat plaintiff’s serious medical needs. Plaintiff also set forth allegations regarding the improper 16 treatment of his eye disease; however, he did not know the identity of the defendants. Plaintiff 17 was informed that he could seek to amend if he identified any of the defendants. A month later, 18 plaintiff sent a letter to the Court indicating that he had suffered a mental breakdown and needed 19 an attorney assigned or for the case to be stayed. Defendant has since been served and plaintiff 20 has now filed a proposed third amended complaint with the identity of an additional doctor who 21 treated him. Plaintiff states that the new defendant Dr. Phuc Lam was one of the John Doe 22 defendants in the second amended complaint who failed to properly treat his pain and his eye 23 disease. The Court construes plaintiff’s third amended complaint as a motion to amend and add 24 this defendant to the allegations of the second complaint. The motion is granted and the 25 allegations in the second amended complaint and plaintiff’s recent submission (Dkt. No. 16) are 26 sufficient to proceed against Dr. Lam. 27 Plaintiff has also requested the appointment of counsel. The Ninth Circuit has held that a 1 circumstances,” the determination of which requires an evaluation of both (1) the likelihood of 2 success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of 3 the complexity of the legal issues involved. Terrell v. Brewer,

(9th Cir. 4 1991). While plaintiff asserts that he suffered a mental breakdown and cannot proceed with this 5 case, he has presented his arguments and claims well through several amended complaints, and he 6 was able to discover the identity of Dr. Lam. Plaintiff has failed to present sufficient facts or 7 arguments regarding his mental health challenges to warrant the appointment of counsel at this 8 time. The request for counsel is denied without prejudice. In light of plaintiff’s demonstrated 9 ability to prosecute this case, the Court also declines to stay the case indefinitely. Plaintiff may 10 request to dismiss this case without prejudice that the Court will consider at this early stage of the 11 litigation. Plaintiff may then seek to refile the case at a later date. The case will be closed during 12 this time and the Court will take no action. If plaintiff seeks to dismiss the case without prejudice, 13 he should inform the Court within fourteen days of service of this Order.1 14 CONCLUSION 15 1. The Court orders that defendant Dr. Phuc Lam a primary care physician at Salinas 16 Valley State Prison be served ELECTRONICALLY. 17 Service on the listed defendant shall proceed under the California Department of 18 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners 19 in CDCR custody. In accordance with the program, the Clerk is directed to serve on CDCR via 20 email the following documents: the operative complaint, this order of service, a CDCR Report of 21 E-Service Waiver form and a summons. The Clerk also shall serve a copy of this order on the 22 plaintiff. 23 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 24 the Court a completed CDCR Report of E-Service Waiver advising the court which defendant 25 listed in this order will be waiving service of process without the need for service by the United 26

27 1 The Court notes that plaintiff is no longer at the prison where the events in this action occurred, 1 States Marshal Service (USMS) and which defendant declines to waive service or could not be 2 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 3 California Attorney General’s Office which, within 21 days, shall file with the Court a waiver of 4 service of process for the defendant if he is waiving service. 5 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 6 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 7 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 8 of this order, the summons and the operative complaint for service upon each defendant who has 9 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 10 Service Waiver. 11 2. In order to expedite the resolution of this case, the Court orders as follows: 12 a. No later than sixty days from the date of service, defendant shall file a 13 motion for summary judgment or other dispositive motion. The motion shall be supported by 14 adequate factual documentation and shall conform in all respects to Federal Rule of Civil 15 Procedure 56, and shall include as exhibits all records and incident reports stemming from the 16 events at issue. If defendant is of the opinion that this case cannot be resolved by summary 17 judgment, he shall so inform the Court prior to the date his summary judgment motion is due. All 18 papers filed with the Court shall be promptly served on the plaintiff. 19 b. At the time the dispositive motion is served, defendant shall also serve, on a 20 separate paper, the appropriate notice or notices required by Rand v. Rowland,

, 953- 21 954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune,

, 1120 n. 4 (9th Cir. 2003). 22 See Woods v. Carey,

(9th Cir. 2012) (Rand and Wyatt notices must be 23 given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed, 24 not earlier);

(separate paper requirement). 25 c. Plaintiff’s opposition to the dispositive motion, if any, shall be filed with 26 the Court and served upon defendant no later than thirty days from the date the motion was served 27 upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is 1 provided to him pursuant to Rand v. Rowland,

(9th Cir. 1998) (en banc), 2 and Klingele v. Eikenberry,

(9th Cir. 1988). 3 If defendant files a motion for summary judgment claiming that plaintiff failed to exhaust 4 || his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take 5 || note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided 6 to him as required by Wyatt v. Terhune,

, 1120 n. 4 (9th Cir. 2003). 7 d. If defendant wishes to file a reply brief, they shall do so no later than fifteen 8 days after the opposition is served upon him. 9 e. The motion shall be deemed submitted as of the date the reply brief is due. 10 || No hearing will be held on the motion unless the Court so orders at a later date. 11 3. All communications by plaintiff with the Court must be served on defendant, or 12 || defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 13 defendant or defendant’s counsel. 14 4. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 3 15 No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the a 16 || parties may conduct discovery. 3 17 5. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court S 18 || wformed of any change of address by filing a separate paper with the clerk headed “Notice of 19 || Change of Address.” He also must comply with the Court’s orders in a timely fashion. Failure to 20 || do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 21 Civil Procedure 41(b). 22 IT IS SO ORDERED. 23 Dated: February 11, 2022 24 25 JAMES DOMATO 26 United StZtes District Judge 27 28