Revelez v. Allison

Background

Richard Revelez, identified as a state inmate proceeding without a lawyer, brought a civil-rights action under 42 U.S.C. § 1983 against Kathleen Allison, identified as the Secretary of the California Department of Corrections and Rehabilitation, and multiple unnamed defendants at San Quentin State Prison. The court had previously ordered service on newly identified defendants. The California Department of Corrections and Rehabilitation reported that it could not identify “Sergeant D. Tomaso” and “Sergeant Whitney” using the information in the earlier order.

Court’s orders

The court stated that the action was proceeding on a failure-to-protect claim against the defendants discussed in the earlier order of service. It directed the Clerk to change the docketed name from “D. Tomaso” to “D’Tamaso” and ordered service on Sergeant D’Tamaso and Sergeant Whitney at San Quentin State Prison.

The court directed the Clerk to use the California Department of Corrections and Rehabilitation’s electronic-service program for prisoner civil-rights cases. The department must report within 40 days after receiving the order which defendants will waive service, which decline to waive service, and which could not be reached. The California Attorney General’s Office must then file waivers for defendants who agree to waive service. The Clerk must prepare forms for defendants who do not waive service so the U.S. Marshals Service can serve them.

Dispositive motions and deadlines

Within 91 days after the order was filed, defendants must file a motion for summary judgment or another dispositive motion—a motion that could resolve the claims—concerning the claims the court found cognizable. Any summary-judgment motion must comply with Rule 56 of the Federal Rules of Civil Procedure and include adequate factual documentation. The order states that summary judgment or qualified immunity cannot be granted if material facts are disputed.

The plaintiff must file and serve an opposition within 28 days after defendants file their motion. If defendants file for summary judgment, they must provide the plaintiff with the warnings required by Ninth Circuit precedent. The court cautioned that failing to oppose a summary-judgment motion may be treated as consent to judgment without a trial. The motion will be submitted when the reply is due unless the court later orders a hearing.

Other instructions and effect of the order

The court stated that discovery may proceed under the Federal Rules of Civil Procedure without another order authorizing it. The plaintiff must serve copies of communications to the court on defendants or their counsel, keep the court informed of address changes, and comply with court orders. Failure to prosecute could lead to dismissal under Rule 41(b). Requests to extend deadlines must be filed by the deadline and supported by good cause.

This order addressed service and case-management procedures; it did not decide whether the plaintiff will ultimately prevail on the failure-to-protect claim.