(PC) Navarro v. StClair et al

Filing 43

ORDER Discharging Order to Show Cause; ORDER Directing Plaintiff to File Opposition or Statement of Non-Opposition to Motion for Summary Judgment signed by Magistrate Judge Sheila K. Oberto on 05/06/2022. Thirty-Day Deadline. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GILBERT NAVARRO,

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Plaintiff,
v.
J. ST. CLAIR, et al.,

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Defendants.

Case No. 1:20-cv-00524-JLT-SKO (PC)
ORDER DISCHARGING ORDER TO
SHOW CAUSE
ORDER DIRECTING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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30-DAY DEADLINE
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

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I.

INTRODUCTION

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On February 25, 2022, Defendants filed a motion for summary judgment on the grounds

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that there is no genuine dispute of material fact and Defendants are entitled to judgment as a

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matter of law. (Doc. 38.) Pursuant to Local Rule 230(l), Plaintiff had 21 days to file an opposition

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or a statement of non-opposition to the motion. Plaintiff failed to do so.

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On April 7, 2022, the Court issued an Order to Show Cause (OSC) why this action should

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not be dismissed for Plaintiff’s failure to prosecute. (Doc. 42.) Plaintiff was given 21 days within

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which to respond to the OSC, or, alternatively, to file an opposition to the motion for summary

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judgment or a statement of non-opposition. (Id.) More than 21 days have passed, and Plaintiff has

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failed to respond in any way.

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II.

DISCUSSION

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As set forth above, Plaintiff failed to file an opposition or statement of non-opposition to

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Defendants’ motion for summary judgment. Plaintiff also failed to respond to this Court’s OSC.

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Out of an abundance of caution and as explained below, Plaintiff will be afforded one final

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opportunity to file an opposition or statement of non-opposition to Defendants’ motion for

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summary judgment before the undersigned recommends dismissal of this action for Plaintiff’s

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failure to prosecute. See DeJohnette v. Gonzalez, 1:17-cv-00696-DAD-JLT (PC), 2018 WL

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6419670 at *1 (E.D. Cal. Dec. 6, 2018).

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Defendants filed their motion for summary judgment on February 25, 2022. (Doc. 38.)

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The proof of service indicates that Plaintiff was served via U.S. Mail at the “California Health

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Care Facility, P.O. Box 213040, Stockton, CA 95213” on that same date. (Id. at 3; see also Doc.

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38-1 at 4; Doc. 38-2 at 31; Doc. 38-3 at 18; Doc. 38-4 at 214; Doc. 38-5 at 9; Doc. 38-6 at 8; Doc.

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38-7 at 14.) On March 3, 2022, Plaintiff filed a Notice of Change of Address dated February 28,

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2022. (Doc. 41.) Plaintiff provided a new address of 1261 West Sonya Lane, Apt. #208 in Santa

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Maria, California 93458. (Id.)

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Defendants did not receive notice of Plaintiff’s change of address until the notice was

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docketed with the Court on March 3, 2022. It is therefore likely that Plaintiff did not receive

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Defendants’ motion for summary judgment because Plaintiff was served at his previous place of

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incarceration via U.S. Mail only three days before Plaintiff executed the notice of change of

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address setting forth his release from state prison.

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To ensure Plaintiff has in fact received notice of Defendants’ motion for summary

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judgment and has been afforded an opportunity to respond to the motion, the Court will discharge

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the OSC, direct the Clerk of the Court to serve Plaintiff with Defendants’ motion for summary

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judgment at Plaintiff’s current address in Santa Maria, and will afford Plaintiff 30 days within

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which to file an opposition or statement of non-opposition to the motion.

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//

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//
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III.

CONCLUSION AND ORDER

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For the reasons stated above, IT IS HEREBY ORDERED that:

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1. The Order to Show Cause issued April 7, 2022 (Doc. 42) is hereby DISCHARGED;

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2. The Clerk of the Court is DIRECTED to serve Plaintiff with Defendants’ Motion for
Summary Judgment (Doc. 38) at Plaintiff’s current address on file with the Court; and

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3. Within 30 days of the date of service of this Order, Plaintiff SHALL file an

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opposition to Defendants’ motion for summary judgment, or, alternatively, a statement

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of non-opposition to the motion. Any request or motion for an extension of time must

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be accompanied by a showing of good cause.

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Plaintiff is advised that a failure to comply with this Order will result in a
recommendation that this case be dismissed with prejudice for a failure to prosecute.

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IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

May 6, 2022

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UNITED STATES MAGISTRATE JUDGE

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