1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 CLAUDIO BERNARDINO JR., 7 Case No. 21-cv-01629 EJD (PR) Plaintiff, 8 ORDER GRANTING MOTION TO SUBSTITUTE PARTY; DENYING 9 MOTION FOR EXTENSION OF TIME AS MOOT; OF SERVICE OF 10 AMENDED COMPLAINT ON v. DEFENDANT DR. EDUARDO 11 DOMINGUES; DIRECTING DEFENDANT TO FILE 12 DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 13 RALPH DIAZ, et al., MOTION; INSTRUCTIONS TO CLERK 14 Defendants. (Docket Nos. 62, 63) 15

16 17 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42

against the Warden and prison officers at the Salinas Valley State Prison, 19 where he is currently housed, and against Ralph Diaz, the Secretary for the California 20 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff’s amended complaint 21 is the operative complaint in this matter. Dkt. No. 47. Plaintiff was granted leave to file a 22 motion to substitute the amended complaint with the proper name of Defendant Dr. John 23 Doe if he is able to ascertain his identity through discovery. Dkt. No. 51 at 25, 28. 24 Plaintiff has filed a motion to substitute, identifying Defendant Dr. John Doe as Dr. 25 Eduardo Domingues. Dkt. No. 62 at 2. The motion is GRANTED. Defendant Domingues 26 shall be served with the amended complaint as set forth below. 27 Plaintiff subsequent motion for a second extension of time to ascertain John Doe’s 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. Plaintiff’s motion to substitute party is GRANTED. Dkt. No. 62. All 4 references to Defendant “Dr. John Doe” in the amended complaint shall be substituted 5 with newly identified Defendant “Dr. Eduardo Domingues.” 6 2. Plaintiff’s motion for a second extension of time to ascertain John Doe’s 7 identity is DENIED as moot. Dkt. No. 63. 8 3. Defendant Dr. Eduardo Domingues shall be served at Salinas Valley State 9 Prison. 10 Service on the listed defendant(s) shall proceed under the California Department of 11 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 12 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 13 on CDCR via email the following documents: the amended complaint and any attachments 14 thereto, Dkt. No. 47, a copy of the court’s last screening order, Dkt. No. 51, a copy of this 15 order of service, and a CDCR Report of E-Service Waiver form. The clerk also shall 16 serve a copy of this order on the plaintiff. 17 No later than 40 days after service of this order via email on CDCR, CDCR shall 18 provide the court a completed CDCR Report of E-Service Waiver advising the court which 19 defendant(s) listed in this order will be waiving service of process without the need for 20 service by the United States Marshal Service (USMS) and which defendant(s) decline to 21 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 22 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 23 days, shall file with the court a waiver of service of process for the defendant(s) who are 24 waiving service. 25 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 26 each defendant who has not waived service according to the CDCR Report of E-Service 27 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 1 each defendant who has not waived service. The clerk also shall provide to the USMS a 2 copy of the CDCR Report of E-Service Waiver. 3 4. No later than ninety-one (91) days from the date this order is filed, 4 Defendants 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. Defendants are 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 Defendants file 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,

(9th Cir. 1998) (en banc). See 15 Woods v. Carey,

(9th Cir. 2012). 16 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 17 and served on Defendants 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,

(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,

, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18

, 653 (9th Cir. 1994). 27 6. Defendants shall file a reply brief no later than fourteen (14) days after 1 7. 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 8. All communications by the Plaintiff with the Court must be served on 4 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 5 || copy of the document to Defendants or Defendants’ counsel. 6 9. 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 is required before the parties may conduct discovery. 9 10. ‘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 F ederal Rule of Civil Procedure 41(b). E 13 11. | Extensions of time must be filed no later than the deadline sought to be 14 || extended and must be accompanied by a showing of good cause. 3 15 This order terminates Docket Nos. 62 and 63. 16 IT ISSO ORDERED. i 17 || Dated: ____ May 11, 2023 3 12 EDWARD J. DAVILA United States District Judge 19 20 21 22 23 24 25 26 27 28