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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KELLY TERRY, No. CIV S-04-2451-MCE-CMK-P

Plaintiff, 

vs. ORDER

JUSTIN WARD, et al.,

Defendants.

 /

The court has determined that this action appears to state a cognizable claim for

relief against defendants Justin Ward, Mark Ford, John Couch, Monica Serros, Eduardo

Borrows-Jones, Sgt. Malloy, Officer Norris, Officer Smith, Officer Pedrino, Officer Serrano, Lt.

Alfonso, and “Psych. Annie,” and directed plaintiff to provide documentation for service of

process by the United States Marshal. Plaintiff has submitted the required papers. 

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 form(s), copies of the complaint, and a copy of this order to the

United States Marshal;

/ / /

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

directed to notify defendant(s) of the commencement of this action and to request a waiver of

service of summons in accordance with the provisions of Federal Rule of Civil Procedure 4(d)

and 28 U.S.C. § 566(c);

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

copy of the 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

sixty 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), shall command all necessary assistance from the

California Department of Corrections to execute this order, and shall

maintain the confidentiality of all information provided by the California

Department of Corrections 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; 

c. Costs incurred in effecting service 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; and

d. Costs of service will be taxed against the personally served

defendant in accordance with the provisions of Federal Rule of Civil

Procedure 4(d)(2);

6. Defendant(s) shall reply to the complaint within the time provided by the

applicable provisions of Federal Rule of Civil Procedure 12(a);

/ / /

/ / /

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7. 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), and 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;

8. 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), which will continue to govern all motions described in no. 7, above, in the

absence of a court order granting such a request;

9. 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. 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. 

/ / /

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

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 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.

11. A motion or opposition supported by unsigned affidavits or declarations

will be stricken;

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

while the action is pending, and 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,” which

also must be properly served on all other parties;

/ / /

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13. The failure of any party to comply with this or any other court order, the

Federal Rules of Civil Procedure, or the local rules of this court may result in the imposition of

appropriate sanctions, including dismissal of the action or entry of default; and

14. The Clerk of the Court is directed to serve upon plaintiff a copy of the

court’s local rules.

DATED: August 30, 2006.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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