1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

United States District Court

Eastern District of California 

David Wesley Birrell,

Plaintiff, No. Civ. S 04-1576 DFL PAN P

vs. Order Directing Service by the

United States Marshal Without

Joseph Bick, et al., Prepayment of Costs

Defendants.

-oOoPlaintiff is proceeding in forma pauperis pursuant to 28

U.S.C. § 1915. The court previously ordered plaintiff to provide

information for service of process on form USM-285, sufficient

copies of the third amended complaint for service, and a notice

of compliance. Plaintiff has filed the required papers. 

1. The Clerk of the Court is directed to forward the

instructions for service of process, the completed summons, and

copies of the third amended complaint and of this order to the

United States Marshal;

Case 2:04-cv-01576-GEB-EFB Document 13 Filed 08/17/05 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

2. Within ten days the United States Marshal shall notify

defendants Joseph Bick, Nadim K. Khoury, R.L. Andreasen, C.

Hollis, N. Grannis and Dennis Kearney of the commencement of this

action and request waiver of service of summons in accordance

with the provisions of Fed. R. Civ. P. 4(d).

3. The United States Marshal shall retain the original

summons and a copy of the third amended complaint in his file.

4. The United States Marshal shall file written waivers of

service of summons and any requests for waiver of service that

are returned undelivered as soon as they are received. 

5. If a requested waiver of service of summons is not

returned by a defendant within 60 days from the day the request

was mailed, the United States Marshal shall:

a. 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 to

execute this order. The United States Marshal shall maintain the

privacy of all information provided in confidence by the

Department pursuant to this order. 

b. Within ten days after service is made, file the return

of service for the defendant 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 itemized on form USM-285 and shall include

costs incurred by the Marshal for photocopying the summons and

Case 2:04-cv-01576-GEB-EFB Document 13 Filed 08/17/05 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

the third amended complaint and preparing any new forms USM-285. 

Costs of service will be taxed against the defendant in

accordance with Fed. R. Civ. P. 4(d)(2).

6. Defendants shall reply to the third amended complaint

within the time provided by Fed. R. Civ. P. 12(a).

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). Failure timely to oppose a motion may be deemed

consent to the relief requested in the motion. Opposition to all

other motions need be filed only as specifically directed by the

court.

8. If plaintiff is released from prison during the pendency

of this action, any party may request application of other

provisions of Local Rule 78-230 but Local Rule 78-230(m) shall

apply until such a request is made and granted. See Local Rule

1-102(d).

9. Pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1119-20 &

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 a defendant. Such a

motion is a request for dismissal of unexhausted claims without

prejudice. The defendant may submit evidence including

declarations under penalty of perjury and duly authenticated

Case 2:04-cv-01576-GEB-EFB Document 13 Filed 08/17/05 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

documents to support the request. If plaintiff contends he did

exhaust administrative remedies available to him, plaintiff may

oppose defendant’s motion and submit evidence, including his own

or others’ competent declarations under penalty of perjury and

duly authenticated documents. If plaintiff does not serve and

file a written opposition to the motion, the court may consider

the failure as plaintiff’s consent that the motion should be

granted. If the defendant’s motion to dismiss is granted

plaintiff’s unexhausted claims will be dismissed without

prejudice.

10. 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 a defendant 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 the defendant without

trial. A defendant’s motion for summary judgment will set forth

the facts affecting plaintiff’s right to relief under the

applicable law that defendant contends are not reasonably subject

to dispute. To oppose a motion for summary judgment, plaintiff

must present evidence in support of his claims. To do this,

plaintiff may call the court’s attention to statements within

plaintiff’s knowledge made under the penalty of perjury in the

complaint, or submit his own or others’ competent declarations

under penalty of perjury, duly authenticated documents, the

Case 2:04-cv-01576-GEB-EFB Document 13 Filed 08/17/05 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

transcript of a deposition, answers to interrogatories, or

admissions obtained in this proceeding. If there is some good

reason why such evidence is not available to plaintiff when

required to oppose a motion for summary judgment, the court will

consider a request to postpone considering the defendant’s

motion. 

11. Unsigned affidavits or declarations will be stricken.

12. Each party shall promptly advise the court if they

change their address by serving and filing a document entitled 

“Notice of Change of Address.” Failure to inform the court of a

change of address may result in the imposition of sanctions

including dismissal of the action.

13. The Clerk of the Court shall serve upon plaintiff a

copy of the Local Rules of Court.

14. 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. Fed. R. Civ. P.

11; Local Rule 11-110.

So ordered.

Dated: August 16, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-01576-GEB-EFB Document 13 Filed 08/17/05 Page 5 of 5