Catanzarite v. Pierce et al

Filing 46

ORDER GRANTING Plaintiff Thirty Days to Submit Opposition to Defendants' Motion to Dismiss Filed March 24, 2014 43 , signed by Magistrate Judge Stanley A. Boone on 8/29/14. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN CATANZARITE,

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Plaintiff,
v.
D. PIERCE, et al.,
Defendants.

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Case No.: 1:12-cv-01502-LJO-SAB (PC)
ORDER GRANTING PLAINTIFF THIRTY DAYS
TO SUBMIT OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS FILED MARCH 24, 2014
[ECF No. 43]

Plaintiff John Catanzarite is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
This action is proceeding on Plaintiff’s due process claim against Defendants Carrasco,

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Croxton, Drake, Gassaway, Gonzalez, Holland, Liles, Marshall, McLaughlin, Miner, Nipper, Pierce,

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Reed, Rouston, Schulteis, Snider, Steadman, and Walker.

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On March 24, 2014, Defendants filed a motion to dismiss based on the failure to exhaust the

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administrative remedies and violation of the applicable statute of limitations. Although Plaintiff

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requested and received an extension of time, Plaintiff did not file an opposition. Pursuant to Local

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Rule 230(l), all motions are deemed submitted after the deadlines for filing an opposition and/or reply

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expire. Local Rule 230(l). Accordingly, on July 10, 2014, the undersigned issued a Findings and

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Recommendation recommending that Defendants’ unenumerated Rule 12(b) motion be denied without

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prejudice and Defendants’ motion to dismiss Plaintiff’s claim arising prior to September 6, 2008 be
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granted. The Findings and Recommendation advised the parties that any objections were to be filed

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within thirty days.
On August 6, 2014, Plaintiff filed objections to the Findings and Recommendation.

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Defendants filed a reply on August 8, 2014.
In his objections, Plaintiff contends that he sent a copy of his opposition through the prison

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mail service on Wednesday, May 28, 2014. In support of his assertion, Plaintiff submit a copy of the

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mail log which indeed indicates that a copy of the opposition to Defendants’ motion to dismiss was

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sent to this Court on May 28, 2014. However, to date, a review of the Court’s docket does not reveal

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receipt of a copy of Plaintiff’s opposition.
Defendants also assert that counsel’s office never received a copy of Plaintiff’s opposition, and

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state that “[e]ven Plaintiff’s log book and declaration of service indicate that he did not serve

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Defendants with the opposition to Defendants’ motion to dismiss.” (ECF No. 44, Resp. at 2.)

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However, Defendants are advised that, as instructed in the Court’s First Informational Order issued in

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this case on September 14, 2012, “After defendants have appeared in a state civil rights action

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pursuant to 42 U.S.C. section 1983 by filing a response to the complaint (i.e., an answer, a motion to

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dismiss, or a motion for summary judgment), and are represented by the office of the California State

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Attorney General, plaintiff is not required to serve copies of filings on defendants or counsel, as

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counsel will receive service via the court’s electronic filing system.” (ECF No. 2, Order, at 3:4-10.)

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In light of the fact that Plaintiff sent a copy of his opposition to this Court on May 28, 2014,

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which was never received, Plaintiff will be granted thirty days from the date of service of this order to

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re-submit a copy of his opposition, and after filing of the opposition the Court will amend, if

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necessary, the pending Findings and Recommendation issued July 10, 2014.

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IT IS SO ORDERED.

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Dated:

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August 29, 2014
UNITED STATES MAGISTRATE JUDGE

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