Polk v. Lattimore et al

Filing 148

ORDER clarifying deadline to file Plaintiff's Opposition to Motion for Summary Judgment 147 signed by Magistrate Judge Barbara A. McAuliffe on 8/2/2021. Filing Deadline: 8/16/2021. (Lundstrom, T)

Case 1:12-cv-01156-DAD-BAM Document 148 Filed 08/02/21 Page 1 of 2
1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

SUSAN MAE POLK,

12
13
14
15

Plaintiff,
v.
LATTIMORE, et al.,
Defendants.

Case No. 1:12-cv-01156-DAD-BAM (PC)
ORDER CLARIFYING DEADLINE TO FILE
PLAINTIFF’S OPPOSITION TO MOTION
FOR SUMMARY JUDGMENT
(ECF No. 147)
Opposition Due: August 16, 2021

16
17
18

Plaintiff Susan Mae Polk (“Plaintiff”) is a state prisoner proceeding pro se and in forma

19

pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s

20

fifth amended complaint against Defendant Baron for retaliation in violation of the First

21

Amendment and deliberate indifference in violation of the Eighth Amendment.

22

On July 23, 2021, Defendant Baron filed a motion for summary judgment for failure to

23

exhaust administrative remedies. (ECF No. 147.) In that motion, Defendant incorrectly states

24

that Plaintiff’s written opposition to the summary judgment motion “must be filed not more than

25

fourteen days after the date of service of the motion.” (Id. at 2.)

26

By the instant order, the Court clarifies that pursuant to Local Rule 230(l), Plaintiff’s

27

opposition to Defendant’s motion for summary judgment shall be served and filed “not more

28

than twenty-one (21) days after the date of service of the motion.” Local Rule 230(l)
1

Case 1:12-cv-01156-DAD-BAM Document 148 Filed 08/02/21 Page 2 of 2
1

(emphasis added). In addition, pursuant to Federal Rule of Civil Procedure 6(d), Plaintiff is

2

allowed an additional three (3) days following service made by mail. Finally, pursuant to the

3

prison mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the date the

4

prisoner delivered it to the prison authorities for mailing to the court clerk. See Houston v. Lack,

5

487 U.S. 266, 270 (1988); Douglas v. Noelle, 567 F.3d 1103, 1108–09 (9th Cir. 2009) (mailbox

6

rule articulated in Houston applies to civil rights actions).

7

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s opposition to Defendant’s

8

motion for summary judgment is due on or before August 16, 2021. Plaintiff is further warned

9

that failure to file an opposition in compliance with the Court’s order will result in dismissal

10

of this action, with prejudice, for failure to prosecute.

11
12
13
14

IT IS SO ORDERED.
Dated:

/s/ Barbara

August 2, 2021

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
2