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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

STEVEN ANDREW LEON,

Plaintiff,

v.

OFFICER GUZMAN, #3968,

Defendant.

Case No. 17-cv-00328-HSG (PR) 

SECOND ORDER OF SERVICE

On January 23, 2017, plaintiff, a state prisoner, filed a pro se civil rights complaint under 

42 U.S.C. § 1983 against two defendants, San Jose Police Officer Guzman and the San Jose Police 

Department. He has been granted leave to proceed in forma pauperis. The action was originally 

assigned to Magistrate Judge Kandis A. Westmore, but on November 7, 2017, it was reassigned to 

the undersigned. On June 12, 2017, Judge Westmore found the complaint stated a cognizable 

Fourth Amendment claim for excessive force against Officer Guzman but dismissed with leave to 

amend the San Jose Police Department. Plaintiff has not amended his claims against the San Jose 

Police Department, and the time in which to do so has passed. Accordingly, the San Jose Police 

Department will be dismissed from this action.

The court sent a Notice of Lawsuit and Request for Waiver of Service of Summons to 

defendant Guzman at the San Jose Police Department, however no response has been received. 

Accordingly, the court will order the United States Marshal to serve defendant Guzman pursuant 

to the instructions below.

In light of the foregoing, the court orders as follows:

1. The claims against defendant San Jose Police Department are DISMISSED without 

prejudice. The Clerk shall terminate this entity as a defendant on the court docket.
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United States District Court

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2. The Clerk shall issue summons and the United States Marshal shall serve, without 

prepayment of fees, a copy of the complaint (dkt. no. 1), a copy of the court’s June 12, 2017 order 

of service (dkt. no. 12), and a copy of this order upon Officer Guzman, #3968 at the San Jose 

Police Department. 

A courtesy copy of this order shall also be mailed to the San Jose Office of the City 

Attorney. 

3. In order to expedite the resolution of this case, the court orders as follows:

a. No later than 91 days from the date this order is filed, defendant must file 

and serve a motion for summary judgment or other dispositive motion with respect to the claim 

found to be cognizable in the court’s June 12, 2017 order of service. If defendant is of the opinion 

that this case cannot be resolved by summary judgment, defendant must so inform the court prior 

to the date the motion is due. A motion for summary judgment also must be accompanied by a 

Rand notice so that plaintiff will have fair, timely, and adequate notice of what is required of him 

in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice 

requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served 

concurrently with motion for summary judgment).1 

b. Plaintiff’s opposition to the summary judgment or other dispositive motion 

must be filed with the court and served upon defendant no later than 28 days from the date the 

motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 

provided later in this order as he prepares his opposition to any motion for summary judgment. 

c. Defendant shall file a reply brief no later than 14 days after the date the 

opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 

hearing will be held on the motion. 

 

1

If defendant asserts that plaintiff failed to exhaust his available administrative remedies as 

required by 42 U.S.C. § 1997e(a), defendant must raise such argument in a motion for summary 

judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014)

(en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that 

failure to exhaust available administrative remedies under the Prison Litigation Reform Act, 

should be raised by a defendant as an unenumerated Rule 12(b) motion). Such a motion should 

also incorporate a modified Wyatt notice in light of Albino. See Wyatt v. Terhune, 315 F.3d 1108, 

1120, n.14 (9th Cir. 2003); Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012).
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United States District Court

Northern District of California

4. Plaintiff is advised that a motion for summary judgment under Rule 56 of the Federal 

Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in 

order to oppose a motion for summary judgment. Generally, summary judgment must be granted 

when there is no genuine issue of material fact – that is, if there is no real dispute about any fact 

that would affect the result of your case, the party who asked for summary judgment is entitled to 

judgment as a matter of law, which will end your case. When a party you are suing makes a 

motion for summary judgment that is properly supported by declarations (or other sworn 

testimony), you cannot simply rely on what your complaint says. Instead, you must set out 

specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 

as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and 

documents and show that there is a genuine issue of material fact for trial. If you do not submit 

your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 

If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 

Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).

(The Rand notice above does not excuse defendant’s obligation to serve said notice again 

concurrently with a motion for summary judgment. Woods, 684 F.3d at 939).

5. All communications by plaintiff with the court must be served on defendant’s counsel 

by mailing a true copy of the document to defendant’s counsel. The court may disregard any 

document which a party files but fails to send a copy of to his opponent. 

6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 

further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 

before the parties may conduct discovery.

7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the court 

informed of any change of address and must comply with the court’s orders in a timely fashion. 

Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 

Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 

pending case every time he is moved to a new facility.

8. Any motion for an extension of time must be filed no later than the deadline sought to 
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United States District Court

Northern District of California

be extended and must be accompanied by a showing of good cause.

9. Plaintiff is cautioned that he must include the case name and case number for this case 

on any document he submits to the court for consideration in this case.

IT IS SO ORDERED.

Dated:

HAYWOOD S. GILLIAM, JR.

United States District Judge

11/14/2017