Jackson v. Haviland et al

Filing 40

ORDER signed by Magistrate Judge Dale A. Drozd on 09/12/12 denying 27 Motion for Summary Judgment to its renewal if necessary. (See order for further details.) (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL JACKSON,

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Plaintiff,

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No. 2:09-cv-02911-DAD P

vs.
JOHN W. HAVILAND, et al.,
Defendants.

ORDER
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Plaintiff is a former state prisoner proceeding pro se with a civil rights action

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pursuant to 42 U.S.C. § 1983. The parties have consented to Magistrate Judge jurisdiction in this

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action pursuant to 28 U.S.C. § 636(c). See Docs. No. 6 & 24. Pending before the court is

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defendant Herrera’s motion for summary judgment.

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On August 3, 2012, the court provided plaintiff with the notice required by Woods

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v. Carey, 684 F.3d 934, 939, Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and

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Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. No. 34.) Plaintiff was also provided

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additional time to file a supplemental opposition to defendant’s motion for summary judgment,

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or in the alternative, to inform the court that no supplemental opposition would be filed and that

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the court should proceed with its consideration of the pending motion based upon his opposition

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that was filed with the court on November 30, 2011. On August 13, 2012, the court’s August 3
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order served on plaintiff at his address of record was returned to the court as undeliverable.

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Subsequently, counsel for defendant Herrera advised the court that he believed that plaintiff’s

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current address was in Richmond, California. On August 23, 2012, the court issued an order

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requiring plaintiff to provide the court with a notice of change of address, the Clerk of the Court

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was directed to provide plaintiff with a copy of the August 3, 2012 order, and the court again

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ordered plaintiff to file his supplemental opposition to the pending summary judgment motion or

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a statement that no supplemental opposition would be filed. The court’s August 23, 2012 order

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was served at plaintiff’s address of record and at the Richmond address provided by defense

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counsel for plaintiff. On September 4, 2012, the court’s August 23, 2012 order was again

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returned to the court as undeliverable. On September 9, 2012, defendant Herrera filed a further

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notice of plaintiff’s failure to timely file a supplemental opposition to the summary judgment

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motion and requested that his pending motion for summary judgment be granted in its entirety.

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Local Rule 183 provides the following:

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If mail directed to a plaintiff in propria persona by the Clerk is
returned by the U.S. Postal Service, and if such plaintiff fails to
notify the Court and opposing parties within sixty-three (63) days
thereafter of a current address, the Court may dismiss the action
without prejudice for failure to prosecute.

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L.R. 183(b). The court intends to dismiss this action pursuant to Local Rule 183(b) if plaintiff

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fails to provide a notice of change of address by October 15, 2012. By this order, the court will

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deny without prejudice defendant Herrera’s motion for summary judgment and grant defendant

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leave to re-file this motion should this action not be dismissed pursuant to Local Rule 183(b).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant Herrera’s motion for summary judgment (Doc. No. 27), filed on

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September 22, 2011, is denied without prejudice to its renewal if necessary;
2. Should plaintiff file and serve a notice of change of address on or before

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October 15, 2012, within thirty days from the filing date of that notice of change of address,

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defendant Herrera may re-file his motion for summary judgment by serving plaintiff with the
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motion and the notice required by Woods v. Carey, 684 F.3d 934, 939, Rand v. Rowland, 154

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F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.

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1988);

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3. If plaintiff fails to file and serve the required notice of change of address by

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October 15, 2012, the court will pursuant to Local Rule 183 dismiss this action without prejudice

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due to plaintiff’s failure to prosecute this action; and

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4. The Clerk of the Court shall serve this order on plaintiff at his address of

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record.

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DATED: September 12, 2012.

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DAD:4
jack2911.msj

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