Develder v. Hirshler et al

Filing 80

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/20/2017 VACATING the 2/23/2017 findings and recommendations 76 . Within 21 days, plaintiff shall file a response to the motion for summary judgment. Defendant's reply, if any, is due 7 days after plaintiff's response is docketed on CM/ECF. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. DEVELDER,

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Plaintiff,

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v.

No. 2:09-cv-1803-TLN-EFB P

ORDER

J. HIRSCHLER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On October 21, 2016, defendant Hirshler filed a motion for summary judgment.

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ECF No. 65. On February 23, 2017, the court recommended that this action be dismissed without

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prejudice because plaintiff had not filed an opposition or a statement of non-opposition to the

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motion. ECF No. 76. Plaintiff objects to the findings and representations, stating that he has

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never received a copy of the motion. ECF No. 77. In response, defendant notes that indeed,

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there is no entry in plaintiff’s mail log documenting plaintiff’s receipt of the motion. ECF No.

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79. Accordingly, defendant re-served the motion on plaintiff on April 5, 2017 and requests that

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the court vacate the findings and recommendations and issue a new briefing schedule. Id

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. The February 23, 2017 findings and recommendations (ECF No. 76) are vacated.

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2. Within 21 days from the date of this order, plaintiff shall file a response to the motion

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for summary judgment. Failure to comply with this order may result in another

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recommendation of dismissal.

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3. Defendant’s reply, if any, is due seven days after plaintiff’s response is docketed on
CM/ECF.
DATED: April 20, 2017.

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