Grabek v. Dickinson et al

Filing 46

ORDER signed by Magistrate Judge Gregory G. Hollows on 3/8/2012 ORDERING that defendants must re-serve their 2/17/2012 motion for summary judgment upon plaintiff at his current address and file proof of the re-service within 3 days; plaintiff's defective 45 motion for summary judgment is VACATED without prejudice to plaintiff's use of the documentation therein within his opposition to defendants' pending summary judgment motion; plaintiff has until 4/15/2012 to file an opposition to the motion; thereafter, defendants will have 7 days to reply. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER GRABEK,
Plaintiff,

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No. CIV S-10-2892 WBS GGH P

vs.

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KATHLEEN DICKINSON, Warden, et al.,

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Defendants.

ORDER
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On February 17, 2012, defendants filed a motion for summary judgment.

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However, it appears that defendants have failed to serve plaintiff at his current address.

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Therefore, defendants will be ordered to re-serve the motion upon plaintiff at his RJ Donovan

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address and to file proof of such re-service within three days.
Although file-stamped as filed on February 27, 2012, by application of the

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mailbox rule,1 plaintiff filed a purported motion (or cross-motion) for summary judgment on

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February 17, 2012. However, this would-be summary judgment motion is not in compliance

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with the requirements of Fed. R. Civ. P. 56 and Local Rule 260(a), inasmuch as plaintiff fails to

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Pursuant to Houston v. Lack, 487 U.S. 266, 275-76, 108 S. Ct. 2379, 2385 (1988)(pro se
prisoner filing is dated from the date prisoner delivers it to prison authorities); Douglas v. Noelle,
567 F.3d 1103, 1109 (9th Cir. 2009), holding that “the Houston mailbox rule applies to § 1983
complaints filed by pro se prisoners”).
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provide a “statement of undisputed facts” or even a memorandum of points and authorities in

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support of his motion. Instead, in his putative dispositive motion, he simply appends

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unauthenticated medical records (as well as portions of defendants’ answer) to a statement to the

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effect that the medical documents show that he has had a number of emergency treatments for his

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medical condition, which plaintiff believes demonstrates that defendants’ deliberate indifference

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in not having paid a bill from UCSF which delayed his surgery subjecting plaintiff to

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unnecessary pain. See docket # 45. This filing does not constitute a motion or cross-motion for

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summary judgment. The court must vacate plaintiff’s motion for summary judgment, but

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plaintiff may make use of the documentation contained within the filing within any opposition to

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defendants’ motion for summary judgment.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants must re-serve their motion for summary judgment, filed on

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February 17, 2012, upon plaintiff at his current address at RJ Donovan and must file proof of the

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re-service within three days;
2. Plaintiff’s defective motion for summary judgment, filed at docket # 45, is

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vacated without prejudice to plaintiff’s use of the documentation therein within his opposition to

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defendants’ pending summary judgment motion;

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3. In light of the apparently defective initial service of defendants’ motion for

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summary judgment, plaintiff will be granted until April 15, 2012 to file his opposition to the

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motion; thereafter, defendants will have seven days to file any reply.

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DATED: March 8, 2012
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009

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grab2892.ord3

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