Cruz v. Espinosa, et al.

Filing 27

ORDER Directing Defendants to Re-Serve Motion for Summary Judgment on Plaintiff Within Seven (7) Days and ORDER Requiring Plaintiff to File an Opposition to Defendants' Motion Within Twenty-One (21) Days of Re-Service, signed by Magistrate Judge Barbara A. McAuliffe on 9/27/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY CRUZ,

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Plaintiff,
v.
M. ESPINOSA, et al.,

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Defendants.

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Case No.: 1:13-cv-01762-BAM PC
ORDER DIRECTING DEFENDANTS TO RESERVE MOTION FOR SUMMARY JUDGMENT
ON PLAINTIFF
ORDER REQUIRING PLAINTIFF TO FILE AN
OPPOSITION to DEFENDANTS’ MOTION
WITHIN TWENTY-ONE DAYS OF RE-SERVICE
(ECF No. 26)

Plaintiff Larry Cruz (“Plaintiff”), a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983, initiated this action on November 1, 2013. This action proceeds against

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Defendants Dunn, Hiracheta, Silva, and Espinosa for excessive force in violation of the Eighth

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Amendment.

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On July 24, 2015, Defendants filed a motion for summary judgment for failure to exhaust

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administrative remedies. Fed. R. Civ. P. 56. Plaintiff did not file any response to that motion. As a

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result, on August 25, 2015, the Court issued an order requiring Plaintiff to file an opposition or

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statement of non-opposition within twenty-one days. (ECF No. 25.) In response to the Court’s order,

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on September 24, 2015, Plaintiff filed a motion requesting a copy of Defendants’ motion for summary

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judgment. (ECF No. 26.) In the motion, Plaintiff states that he received the Court’s August 25, 2015
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order but has not received Defendants’ July 24, 2015 motion for summary judgment. (Id. at 4.) He

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requests a copy so that he can make his arguments against Defendants’ motion. (Id.)

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It appears based on Defendants’ certificates of service that they mailed their motion and

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accompanying documents to Plaintiff at the current address he has provided the Court, but based on

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his representations he did not receive that mailing. (ECF No. 21.) To ensure that Plaintiff is afforded a

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full opportunity to pursue this matter on the merits, the Court will direct Defendants to re-serve their

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motion for summary judgment on him, and will grant him one final opportunity to respond.

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Additionally, the Court notes that although Plaintiff’s motion in response to the Court’s August

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25, 2015 order was dated August 31, 2015, it was not filed until several weeks later, on September 24,

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2015. Plaintiff is admonished in the future to pursue this matter with diligence and to comply with all

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applicable deadlines.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Within seven (7) days from the date of service of this order, Defendants shall re-serve

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their motion for summary judgment for failure to exhaust administrative remedies and

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accompanying documents, filed on July 24, 2015, on Plaintiff at his current address of

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record;

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2.

Defendants shall file a certificate of service with the Court;

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3.

Plaintiff is granted twenty-one (21) days from the date that Defendants’ motion for

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summary judgment is served to file an opposition or statement of non-opposition to that

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motion; and

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4.

Plaintiff is warned that the failure to comply with this order will result in dismissal of
this action, with prejudice, for failure to prosecute.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 27, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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