Avalos v. Hashemi

Filing 23

ORDER GRANTING Defendant's 22 Request to Re-Serve Defendant's Motion for Summary Judgment on Plaintiff; Seven (7) Day Deadline; ORDER DIRECTING Plaintiff to File Notice Confirming Mailing Address; Fourteen (14) Day Deadline; ORDER DIRECTING Clerk of Court to Serve Order on Plaintiff at Correct Mailing Address signed by Magistrate Judge Barbara A. McAuliffe on 11/30/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALBERT AVALOS,

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Plaintiff,
v.

Case No. 1:16-cv-00364-AWI-BAM (PC)
ORDER GRANTING DEFENDANT’S
REQUEST TO RE-SERVE DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF

N. HASHEMI,
(ECF No. 22)
Defendant.
SEVEN (7) DAY DEADLINE
ORDER DIRECTING PLAINTIFF TO FILE
NOTICE CONFIRMING MAILING
ADDRESS
FOURTEEN (14) DAY DEADLINE
ORDER DIRECTING CLERK OF COURT TO
SERVE ORDER ON PLAINTIFF AT
CORRECT MAILING ADDRESS
Plaintiff Albert Avalos (“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 currently proceeds

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on Plaintiff’s first amended complaint against Defendant Hashemi for deliberate indifference to a

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serious medical need in violation of the Eighth Amendment.

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On November 14, 2017, Defendant Hashemi timely filed a motion for summary judgment

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for failure to exhaust administrative remedies. (ECF No. 21.) Defendant served the motion on

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Plaintiff at his current address of record the same day. (ECF No. 21-9.)
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Currently before the Court is Defendant’s request to re-serve Defendant’s motion for

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summary judgment on Plaintiff at his correct mailing address. (ECF No. 22.) Defendant states

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that on November 27, 2017, counsel for defendant received the motion for summary judgment

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served on Plaintiff marked “Return to Sender, No Such Number, Unable to Forward, Return to

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Sender.” After contacting the litigation coordinator at the institution where Plaintiff is currently

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housed, defense counsel was informed that the correct P.O. Box number for Plaintiff is “5244,”

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not “5243.” Pursuant to that information, Defendant seeks to re-serve the motion for summary

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judgment to Plaintiff’s correct mailing address, and to re-set the deadline for Plaintiff’s

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opposition based on the new service date. (Id.)

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Although Plaintiff has not had an opportunity to respond to Defendant’s request, the Court
finds a response unnecessary, and the motion is deemed submitted. Local Rule 230(l).

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Having considered the request, the Court finds good cause to permit re-service of the

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motion for summary judgment on Plaintiff. The Court further finds that Plaintiff will not be

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prejudiced by re-service of the motion, or by the extension of time to file his opposition.

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In addition, Plaintiff is reminded that, pursuant to Local Rules 182 and 183, a pro se party

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is under a continuing duty to notify the Clerk, the Court, and all other parties of any change of

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address or telephone number. Local Rules 182(f), 183(b). Additionally, Local Rule 110 provides

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that “[f]ailure . . . of a party to comply with these [Local] Rules or with any order of the Court

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may be grounds for imposition by the Court of any and all sanctions . . . within the inherent

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power of the Court.” It is Plaintiff’s responsibility to apprise the Court and Defendant of his

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current mailing address, and to ensure that such address is accurate.

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Accordingly, IT IS HEREBY ORDERED that:
1. Defendant’s request to re-serve Defendant’s motion for summary judgment on Plaintiff,
(ECF No. 22), is GRANTED;

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2. Within seven (7) days from the date of service of this order, Defendant shall file written

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notice with the Court confirming re-service of the motion for summary judgment, (ECF

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No. 21), and the request to re-serve the motion for summary judgment, (ECF No. 22), to

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Plaintiff at the following address:
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Albert Avalos
H-36513
P.O. Box 5244
Corcoran, CA 93212

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3. Plaintiff’s opposition to Defendant’s motion for summary judgment is due within twentyone (21) days from the date of re-service of Defendant’s motion for summary judgment;
4. Within fourteen (14) days from the date of service of this order, Plaintiff shall file written
notice to the Court confirming his current mailing address; and
5. The Clerk of the Court is DIRECTED to serve this order on Plaintiff at his current address
of record and at the following address:

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Albert Avalos
H-36513
P.O. Box 5244
Corcoran, CA 93212

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 30, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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