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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT K. RICKS,
Plaintiff,

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v.

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G. LEVINE, et al.,
Defendants.

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1:15-cv-01150-AWI-BAM (PC)
AMENDED ORDER REGARDING
SERVICE OF DEFENDANT LEVINE’S
MOTION FOR SUMMARY JUDGMENT1
(ECF No. 49, 52, 53)

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Plaintiff Scott K. Ricks (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is related to Ricks v.

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Austria, et al., 1:15-cv-01147-AWI-BAM, and Ricks v. Onyeye, et al., 1:15-cv-1148-AWI-

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BAM. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.
On July 7, 2017, Defendant G. Levine, M.D. filed a motion for summary judgment. (ECF

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No. 49.) The motion and supporting documents were filed with a certificate of service by mail,

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declaring that the documents were served by mail on Plaintiff at his address of record on the

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same day the document was filed with the Clerk of the Court.

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The original order issued on August 7, 2017 gave an incorrect address for defense counsel. This
amended order has the correct address.

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On July 12, 2017, pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v.

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Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.

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1988), the Court issued an order notifying Plaintiff of his rights and the requirements for

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opposing the motion. (ECF No. 50.)

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On July 28, 2017, Plaintiff filed a motion in opposition to granting Defendant Levine’s

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motion for summary judgment. (ECF No. 52.) Plaintiff contends that he received the Court’s

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order issued July 12, 2017, but never received any copy of Defendant’s motion and has no idea

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what it states. (Id.) Plaintiff further contends that checking the mail log books would substantiate

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his representations. Plaintiff also states that he generally opposes any granting of summary

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judgment in Defendants’ favor in this case.

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On August 4, 2017, Defendant Levine filed a reply to Plaintiff’s opposition to the motion

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for summary judgment, with a declaration of counsel in support. (ECF No. 53.) Defense counsel

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declares that Plaintiff had not advised counsel that he had never received the motion for

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summary judgment, but if Plaintiff had, he would have re-served Plaintiff with another copy of

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the motion. However, Plaintiff has not provided any different address or procedure to ensure that

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he receives the motion, if there was some reason that he did not receive it. Defendant Levine

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asks that the Court require Plaintiff to inform them of any such updated address or procedure so

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that he can be properly re-served. The Court finds Defendant Levine’s request reasonable, and

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that in the interests of justice the motion should be re-served.

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Accordingly, the Court hereby orders that:

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1.

Within ten (10) days of service of this order, Plaintiff shall notify Defendant

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Levine’s counsel, Mr. Aaron T. Schultz, of Galloway, Lucchese, Everson & Picchi, 2300 Contra

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Costa Boulevard, Suite 350, Pleasant Hill, CA 94523 (telephone: [phone] ext. 534), of

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Plaintiff’s mailing address and any procedures necessary for him to receive service of Defendant

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Levine’s motion for summary judgment;

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2.

Within five (5) days of receipt of Plaintiff’s information, Defendant Levine shall

re-serve his motion for summary judgement on Plaintiff;
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Within twenty-one (21) days of the service of Defendant Levine’s motion for
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summary judgment, Plaintiff shall file and serve an opposition or statement of non-opposition to

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that motion. Defendant Levine shall be permitted the usual opportunity to file and serve a reply

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under Local Rule 230(l) to any opposition that Plaintiff makes;

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4.

No extensions of time of these deadlines will be granted without a request

supported by a showing of good cause; and
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The parties are warned that the failure to comply with this order may result in the

imposition of sanctions.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 7, 2017

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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