Jimenez v. Horel

Filing 74

ORDER signed by Magistrate Judge Kendall J. Newman on 09/10/12 vacating 72 FINDINGS AND RECOMMENDATIONS. Defendant's reply is due 7 days from the date of this order. (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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ROBERT CHRISTOPHER JIMENEZ,

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Plaintiff,

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vs.

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No. 2:10-cv-2943 KJM KJN P

J. WHITFIELD,

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Defendant.

ORDER
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On September 6, 2012, plaintiff’s September 5, 2012 opposition to the motion for

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summary judgment was entered on the court’s docket. On the same day, the court recommended

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that this action be dismissed based in part on plaintiff’s failure to timely oppose the motion, and

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his failure to prosecute this action. However, review of plaintiff’s opposition reflects that

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plaintiff presented his filing to prison authorities for mailing on August 2, 2012. (Dkt. No. 73 at

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6.) Under the mailbox rule, plaintiff’s opposition is timely, even though it was not received by

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the court until September 5, 2012. Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009)

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(holding that “the Houston mailbox rule applies to § 1983 complaints filed by pro se prisoners”),

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quoting Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the

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date prisoner delivers it to prison authorities). Thus, the findings and recommendations are

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vacated, and defendant may file a reply within seven days from the date of this order.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The September 6, 2012 findings and recommendations (dkt. no. 72) are

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vacated; and

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2. Defendant’s reply is due seven days from the date of this order.
DATED: September 10, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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jime2943.vac

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