Alford v. Dang, et al.

Filing 44

ORDER signed by Magistrate Judge Edmund F. Brennan on 05/31/18 VACATING 39 the Findings and Recommendations. Defendant shall file a reply (if any) to plaintiffs opposition 43 withinfourteen days from the date this order is served. The motion for summary judgment will thenstand submitted. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRACY FIDEL ALFORD,

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Plaintiff,

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v.

No. 2:14-cv-0714-KJM-EFB P

ORDER

LAM DANG, et al.,
Defendants.

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Plaintiff, a state prisoner without counsel, has filed a complaint alleging civil rights

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violations pursuant to 42 U.S.C. § 1983. On February 5, 2018, defendant Clough filed a motion

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for summary judgment. ECF No. 37. Plaintiff did not file an opposition thereto within the

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deadline and, on March 9, 2018, the court directed plaintiff to file his opposition within twenty-

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one days. ECF No. 38. He was warned that his failure to do so might result in dismissal of this

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case. Id. at 2. On April 11, 2018, after plaintiff had failed to comply with the aforementioned

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order, the court recommended that this action be dismissed for failure to prosecute. ECF No. 39.

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More than a month later, on May 25, 2018, plaintiff filed an opposition as well as objections to

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the findings and recommendations. ECF Nos. 42, 43.

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There is no question, in light of the foregoing background, that plaintiff’s opposition is

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untimely. Nevertheless, the court must weigh plaintiff’s obvious failure to adhere to this court’s

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deadlines against the Ninth Circuit’s position that “a case should, whenever possible, be decided
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on the merits.” Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). Given that the opposition has

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been filed and defendant’s reply is presumably imminent, it appears that the court will soon have

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the opportunity to consider the merits of defendant’s motion for summary judgment. For these

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reasons, the court will: (1) vacate the recommendation that this case be dismissed for failure to

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prosecute; and (2) direct defendant to file a reply to plaintiff’s opposition within fourteen days

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from the date this order is filed.

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It is THEREFORE ORDERED that:

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1. The April 11, 2018 findings and recommendations (ECF No. 39) are VACATED; and

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2. Defendant shall file a reply (if any) to plaintiff’s opposition (ECF No. 43) within

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fourteen days from the date this order is served. The motion for summary judgment will then

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stand submitted.

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DATED: May 31, 2018.

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