Ricks v. Levine, et al.

Filing 55

AMENDED ORDER re 54 Order Regarding Service of Defendant Levine's Motion for Summary Judgment, signed by Magistrate Judge Barbara A. McAuliffe on 8/7/17. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 SCOTT K. RICKS, Plaintiff, 11 v. 12 13 G. LEVINE, et al., Defendants. 14 15 ) ) ) ) ) ) ) ) ) ) ) 1:15-cv-01150-AWI-BAM (PC) AMENDED ORDER REGARDING SERVICE OF DEFENDANT LEVINE’S MOTION FOR SUMMARY JUDGMENT1 (ECF No. 49, 52, 53) 16 Plaintiff Scott K. Ricks (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is related to Ricks v. 19 Austria, et al., 1:15-cv-01147-AWI-BAM, and Ricks v. Onyeye, et al., 1:15-cv-1148-AWI- 20 BAM. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and 21 Local Rule 302. On July 7, 2017, Defendant G. Levine, M.D. filed a motion for summary judgment. (ECF 22 23 No. 49.) The motion and supporting documents were filed with a certificate of service by mail, 24 declaring that the documents were served by mail on Plaintiff at his address of record on the 25 same day the document was filed with the Clerk of the Court. 26 27 28 1 The original order issued on August 7, 2017 gave an incorrect address for defense counsel. This amended order has the correct address. 1 1 On July 12, 2017, pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. 2 Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 3 1988), the Court issued an order notifying Plaintiff of his rights and the requirements for 4 opposing the motion. (ECF No. 50.) 5 On July 28, 2017, Plaintiff filed a motion in opposition to granting Defendant Levine’s 6 motion for summary judgment. (ECF No. 52.) Plaintiff contends that he received the Court’s 7 order issued July 12, 2017, but never received any copy of Defendant’s motion and has no idea 8 what it states. (Id.) Plaintiff further contends that checking the mail log books would substantiate 9 his representations. Plaintiff also states that he generally opposes any granting of summary 10 judgment in Defendants’ favor in this case. 11 On August 4, 2017, Defendant Levine filed a reply to Plaintiff’s opposition to the motion 12 for summary judgment, with a declaration of counsel in support. (ECF No. 53.) Defense counsel 13 declares that Plaintiff had not advised counsel that he had never received the motion for 14 summary judgment, but if Plaintiff had, he would have re-served Plaintiff with another copy of 15 the motion. However, Plaintiff has not provided any different address or procedure to ensure that 16 he receives the motion, if there was some reason that he did not receive it. Defendant Levine 17 asks that the Court require Plaintiff to inform them of any such updated address or procedure so 18 that he can be properly re-served. The Court finds Defendant Levine’s request reasonable, and 19 that in the interests of justice the motion should be re-served. 20 Accordingly, the Court hereby orders that: 21 1. Within ten (10) days of service of this order, Plaintiff shall notify Defendant 22 Levine’s counsel, Mr. Aaron T. Schultz, of Galloway, Lucchese, Everson & Picchi, 2300 Contra 23 Costa Boulevard, Suite 350, Pleasant Hill, CA 94523 (telephone: 925-930-9090 ext. 534), of 24 Plaintiff’s mailing address and any procedures necessary for him to receive service of Defendant 25 Levine’s motion for summary judgment; 26 27 28 2. Within five (5) days of receipt of Plaintiff’s information, Defendant Levine shall re-serve his motion for summary judgement on Plaintiff; 3. Within twenty-one (21) days of the service of Defendant Levine’s motion for 2 1 summary judgment, Plaintiff shall file and serve an opposition or statement of non-opposition to 2 that motion. Defendant Levine shall be permitted the usual opportunity to file and serve a reply 3 under Local Rule 230(l) to any opposition that Plaintiff makes; 4 5 6 7 4. No extensions of time of these deadlines will be granted without a request supported by a showing of good cause; and 5. The parties are warned that the failure to comply with this order may result in the imposition of sanctions. 8 9 10 IT IS SO ORDERED. Dated: /s/ Barbara August 7, 2017 11 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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