Johnson v. California Medical Facility, et al.

Filing 56

ORDER signed by Magistrate Judge Kendall J. Newman on 1/19/17 ordering defendant's request for relief from local rule 230(l) 54 is denied. The 2/23/17 hearing date before the undersigned is vacated. Defendant's 1/17/17 motion to dismiss 55 shall be briefed and decided on the papers under Local Rule 230(l). Plaintiff shall file an opposition to the motion to dismiss as required under Local Rule 230(l). (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JACKIE JOHNSON, Case No. 2:14-cv-0580 KJN 12 Plaintiff, ORDER 13 v. 14 15 LUISA PLASENCIA,1 16 Defendant. 17 18 Plaintiff is a former state prisoner. On January 10, 2017, defendants filed a request for 19 relief from Local Rule 230(l) because none of the parties are incarcerated, and argue that Local 20 Rule 230(l) no longer applies to this action. On January 17, 2017, defendants filed a motion to 21 dismiss this action, and noticed the motion for hearing on February 23, 2017. 22 Plaintiff has paroled from state prison. (ECF Nos. 39, 51.) On December 19, 2016, 23 plaintiff changed his address to Inglewood, California. It is likely that plaintiff’s parole 24 conditions restrict his ability to travel. Indeed, the settlement conference in this case was set 25 before a Magistrate Judge in Santa Ana, California, located in the Central District of California. 26 27 28 In addition, on December 3, 2014, the parties were informed that: 1 Previously-named defendants have been dismissed, and this action proceeds solely on plaintiff’s Eighth Amendment claim against defendant Luisa Plasencia. (ECF No. 40.) 1 1 2 9. If plaintiff is released from prison while this case is pending, any party may request application of the other provisions of L.R. 230 in lieu of L.R. 230(l). Until such a motion is granted, L.R. 230(l) will govern all motions described in #8 above regardless of plaintiff’s custodial status. See L.R. 102(d). 3 4 (ECF No. 13 at 3.) At this time, the court does not find good cause to remove the application of 5 Local Rule 230(l) to motions filed in this action. Moreover, because defendant filed the motion 6 to dismiss and noticed it for hearing before the court ruled on the pending request, the February 7 23, 2017 hearing date is vacated, and defendant’s motion to dismiss shall be heard on the papers. 8 Plaintiff is cautioned that failure to timely file an opposition to the motion to dismiss may 9 be deemed a waiver of any opposition to the granting of the motion, Local Rule 230(l), and may 10 result in the dismissal of this action. See Fed. R. Civ. P. 41(b). 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Defendant’s request for relief from Local Rule 230(l) (ECF No. 54) is denied; 13 2. The February 23, 2017 hearing date before the undersigned is vacated; 14 3. Defendant’s January 17, 2017 motion to dismiss (ECF No. 55) shall be briefed and 15 16 decided on the papers under Local Rule 230(l); and 4. Plaintiff shall file an opposition to the motion to dismiss as required under Local Rule 17 230(l). 18 Dated: January 19, 2017 19 20 21 /john0580.230l 22 23 24 25 26 27 28 2

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