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Pursuant to Fed. R. Civ. P 25(d), James Tilton is substituted for his predecessor. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

O.Z. MARTIN,

Plaintiff, No. CIV S 04-2360 MCE CMK P

vs.

JAMES TILTON , et al., ORDER VACATING SCHEDULING ORDER, 1

DENYING THE PLAINTIFF’S MOTION TO

COMPEL,AND ORDER DIRECTING SERVICE

BY THE UNITED STATES MARSHAL

WITHOUT PREPAYMENT OF COSTS

 /

Plaintiff is proceeding without counsel and in forma pauperis in this civil

rights action. Plaintiff alleges that his rights under the Americans with Disablities Act and under

the Eighth Amendment were violated when defendants refused to provide him with a double

mattress. Currently pending is plaintiff’s motion to compel discovery and for sanctions. 

In his motion to compel sanctions, plaintiff sought information concerning the

duties of Captain J. Stocker. In defendants’ response they correctly noted that defendant Stocker

had not been served. Plaintiff responded by noting that, by order filed January 4, 2005, the court

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As previously noted, Pursuant to Fed. R. Civ. P 25(d), James Tilton is substituted for his

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predecessor Edward Almeida, Jr. (who was then replaced by Jeanne Woodford). 

2

had granted his motion to file an amended complaint. By order filed January 6, 2005 the court

found that the amended complaint stated a cognizable claim against defendants Almeida, Carey

and Stocker; thereby making the amended complaint filed December 20, 2004 the operative

complaint in this matter. The January 6, 2005 order directed plaintiff to provide information for

service of process on form USM-285, a completed summons, sufficient copies of the amended

complaint for service, and a notice of compliance. Plaintiff filed the required papers. (Doc. 15.) 

Around the time that the court granted plaintiff’s leave to amend, plaintiff filed

several motions for relief (docs. 7, 8, 12), and the court switched from its old method of filing to

electronic filing. It appears that the documents which plaintiff submitted for service of his

amended complaint were lost in the confusion and the amended complaint was never served.

 This action has not been proceeding on the operative complaint. Accordingly, the court will

vacate the scheduling order in this matter and order the amended complaint served on defendants. 

 Accordingly, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to forward the instructions for service of

process, the completed summons , copies of the amended complaint filed December 20, 2004 and

copies of this order to the United States Marshal.

2. Within ten days from the date of this order, the United States Marshal is

directed to notify defendants James Tilton , Jr. Tom L. Carey and J. Stocker of the 2

commencement of this action and to request a waiver of service of summons in accordance with

the provisions of Fed. R. Civ. P. 4(d) and 28 U.S.C. § 566(c). Plaintiff’s complaint lists four Doe

defendants. The court cannot order service of process upon fictitious defendants. Upon

discovering the name of any of the Doe defendants, plaintiff must promptly file a motion for leave

to amend, accompanied by a proposed amended complaint identifying the additional defendant or

defendants. Plaintiff is warned that undue delay in discovering the defendants’ names and

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seeking leave to amend may result in the denial of leave to proceed against these defendants. 

3. The United States Marshal is directed to retain the sealed summons and a copy

of the amended complaint in their file for future use.

4. The United States Marshal shall file returned waivers of service of summons as

well as any requests for waivers that are returned as undelivered as soon as they are received. 

5. If a waiver of service of summons is not returned by a defendant within twenty

days from the date of mailing the request for waiver, the United States Marshal shall:

a. Personally serve process and a copy of this order upon the defendant

pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. 

§ 566(c) and shall command all necessary assistance from the California

Department of Corrections (CDC) to execute this order. The United States

Marshal shall maintain the confidentiality of all information provided by

the CDC pursuant to this order. 

b. Within ten days after personal service is effected, the United States

Marshal shall file the return of service for the defendant, along with

evidence of any attempts to secure a waiver of service of summons and of

the costs subsequently incurred in effecting service on said defendant. Said

costs shall be enumerated on the USM-285 form and shall include the costs

incurred by the Marshal’s office for photocopying additional copies of the

summons and amended complaint and for preparing new USM-285 forms,

if required. Costs of service will be taxed against the personally served

defendant in accordance with the provisions of Fed. R. Civ. P. 4(d)(2).

6. Defendants shall reply to the amended complaint within the time provided by

the applicable provisions of Fed. R. Civ. P. 12(a).

7. Discovery shall not proceed until the court issues a discovery order. Generally,

a discovery order will issue after defendants file their answer. 

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8. Unless otherwise ordered, all motions to dismiss, motions for summary

judgment, motions concerning discovery, motions pursuant to Rules 7, 11, 12, 15, 41, 55, 56, 59

and 60 of the Federal Rules of Civil Procedure, and motions pursuant to Local Rule 11-110 shall

be briefed pursuant to Local Rule 78-230(m). Failure to oppose such a motion timely may be

deemed a waiver of opposition to the motion. Opposition to all other motions need be filed only

as directed by the court.

9. If plaintiff is released from prison at any time during the pendency of this case,

any party may request application of other provisions of Local Rule 78-230 in lieu of Local Rule

78-230(m). In the absence of a court order granting such a request, the provisions of Local Rule

78-230(m) will govern all motions described in #7 above regardless of plaintiff’s custodial status. 

See Local Rule 1-102(d).

10. Pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003),

plaintiff is advised of the following requirements for opposing a motion to dismiss for failure to

exhaust administrative remedies made by defendant pursuant to non-enumerated Rule 12(b) of the

Federal Rules of Civil Procedure. Such a motion is a request for dismissal of unexhausted claims

without prejudice. The defendant may submit affidavits or declarations under penalty of perjury

and admissible documentation to support the motion to dismiss. To oppose the motion, plaintiff

may likewise file declarations under penalty of perjury and admissible documentation. Plaintiff

may rely upon statements made under the penalty of perjury in the complaint if the complaint

shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court’s

attention those parts of the complaint upon which plaintiff relies. Plaintiff may serve and file one

or more affidavits or declarations by other persons who have personal knowledge of relevant

matters. Plaintiff may also rely upon written records, but plaintiff must prove that the records are

what plaintiff claims they are. If plaintiff fails to contradict defendant’s evidence with admissible

evidence, the court may rely on the defendant’s evidence. In the event both sides submit matters

outside the pleadings, the court may look beyond the pleadings and decide disputed issues of fact. 

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If plaintiff does not serve and file a written opposition to the motion, the court may consider the

failure to act as a waiver of opposition to the defendant’s motion. If the defendant’s motion to

dismiss, whether opposed or unopposed, is granted, plaintiff’s unexhausted claims will be

dismissed without prejudice. 

11. Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc),

cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988),

plaintiff is advised of the following requirements for opposing a motion for summary judgment

made by defendants pursuant to Rule 56 of the Federal Rules of Civil Procedure. Such a motion

is a request for an order for judgment in favor of defendants without trial. A defendant’s motion

for summary judgment will set forth the facts that the defendants contend are not reasonably

subject to dispute and that entitle the defendants to judgment. To oppose a motion for summary

judgment, plaintiff must show proof of his or her claims. Plaintiff may do this in one or more of

the following ways. Plaintiff may rely upon statements made under the penalty of perjury in the

complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and

plaintiff calls to the court’s attention those parts of the complaint upon which plaintiff relies. 

Plaintiff may serve and file one or more affidavits or declarations setting forth the facts that

plaintiff believes prove plaintiff’s claims; the person who signs an affidavit or declaration must

have personal knowledge of the facts stated. Plaintiff may rely upon written records, but plaintiff

must prove that the records are what plaintiff claims they are. Plaintiff may rely upon all or any

part of the transcript of one or more depositions, answers to interrogatories, or admissions

obtained in this proceeding. If plaintiff fails to contradict the defendants’ evidence with

counteraffidavits or other admissible evidence, the defendants’ evidence may be taken as the truth

and the defendants’ motion for summary judgment granted. If there is some good reason why

such facts are not available to plaintiff when required to oppose a motion for summary judgment,

the court will consider a request to postpone considering the defendants’ motion. If plaintiff does

not serve and file a written opposition to the motion or a request to postpone consideration of the

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motion, the court may consider the failure to act as a waiver of opposition to the defendants’

motion. If the defendants’ motion for summary judgment, whether opposed or unopposed, is

granted, judgment will be entered for the defendants without a trial and the case will be closed.

12. A motion or opposition supported by unsigned affidavits or declarations will

be stricken.

13. Each party shall keep the court informed of a current address at all times while

the action is pending. Any change of address must be reported promptly to the court in a separate

document captioned for this case and entitled “Notice of Change of Address.” A notice of change

of address must be properly served on other parties. Pursuant to Local Rule 83-182(d), service of

documents at the record address of a party is fully effective. Failure to inform the court of a

change of address may result in the imposition of sanctions including dismissal of the action.

14. The Clerk of the Court shall serve upon plaintiff a copy of the Local Rules of

Court.

15. The failure of any party to comply with this order, the Federal Rules of Civil

Procedure, or the Local Rules of Court may result in the imposition of sanctions including, but

not limited to, dismissal of the action or entry of default.

16. The scheduling order issued on May 26, 2006 (doc. 27) is vacated.

17. Plaintiff’s motion to compel (doc. 32) is denied as moot.

DATED: October 31, 2006.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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