(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GILBERT NAVARRO, 12 13 14 Plaintiff, v. J. ST. CLAIR, et al., 15 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 16 30-DAY DEADLINE 17 18 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 20 I. INTRODUCTION 21 On February 25, 2022, Defendants filed a motion for summary judgment on the grounds 22 that there is no genuine dispute of material fact and Defendants are entitled to judgment as a 23 matter of law. (Doc. 38.) Pursuant to Local Rule 230(l), Plaintiff had 21 days to file an opposition 24 or a statement of non-opposition to the motion. Plaintiff failed to do so. 25 On April 7, 2022, the Court issued an Order to Show Cause (OSC) why this action should 26 not be dismissed for Plaintiff’s failure to prosecute. (Doc. 42.) Plaintiff was given 21 days within 27 which to respond to the OSC, or, alternatively, to file an opposition to the motion for summary 28 judgment or a statement of non-opposition. (Id.) More than 21 days have passed, and Plaintiff has 1 failed to respond in any way. 2 II. DISCUSSION 3 As set forth above, Plaintiff failed to file an opposition or statement of non-opposition to 4 Defendants’ motion for summary judgment. Plaintiff also failed to respond to this Court’s OSC. 5 Out of an abundance of caution and as explained below, Plaintiff will be afforded one final 6 opportunity to file an opposition or statement of non-opposition to Defendants’ motion for 7 summary judgment before the undersigned recommends dismissal of this action for Plaintiff’s 8 failure to prosecute. See DeJohnette v. Gonzalez, 1:17-cv-00696-DAD-JLT (PC), 2018 WL 9 6419670 at *1 (E.D. Cal. Dec. 6, 2018). 10 Defendants filed their motion for summary judgment on February 25, 2022. (Doc. 38.) 11 The proof of service indicates that Plaintiff was served via U.S. Mail at the “California Health 12 Care Facility, P.O. Box 213040, Stockton, CA 95213” on that same date. (Id. at 3; see also Doc. 13 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. 14 38-7 at 14.) On March 3, 2022, Plaintiff filed a Notice of Change of Address dated February 28, 15 2022. (Doc. 41.) Plaintiff provided a new address of 1261 West Sonya Lane, Apt. #208 in Santa 16 Maria, California 93458. (Id.) 17 Defendants did not receive notice of Plaintiff’s change of address until the notice was 18 docketed with the Court on March 3, 2022. It is therefore likely that Plaintiff did not receive 19 Defendants’ motion for summary judgment because Plaintiff was served at his previous place of 20 incarceration via U.S. Mail only three days before Plaintiff executed the notice of change of 21 address setting forth his release from state prison. 22 To ensure Plaintiff has in fact received notice of Defendants’ motion for summary 23 judgment and has been afforded an opportunity to respond to the motion, the Court will discharge 24 the OSC, direct the Clerk of the Court to serve Plaintiff with Defendants’ motion for summary 25 judgment at Plaintiff’s current address in Santa Maria, and will afford Plaintiff 30 days within 26 which to file an opposition or statement of non-opposition to the motion. 27 // 28 // 2 1 III. CONCLUSION AND ORDER 2 For the reasons stated above, IT IS HEREBY ORDERED that: 3 1. The Order to Show Cause issued April 7, 2022 (Doc. 42) is hereby DISCHARGED; 4 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 5 6 3. Within 30 days of the date of service of this Order, Plaintiff SHALL file an 7 opposition to Defendants’ motion for summary judgment, or, alternatively, a statement 8 of non-opposition to the motion. Any request or motion for an extension of time must 9 be accompanied by a showing of good cause. 10 11 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. 12 13 14 15 IT IS SO ORDERED. Dated: /s/ Sheila K. Oberto May 6, 2022 . UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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