(PC) Smith v. Municipality of Fresno County et al

Filing 136

ORDER signed by Magistrate Judge Allison Claire on 03/03/2023 DIRECTING the Plaintiff to file the in forma pauperis application for a non-prisoner and to SHOW CAUSE as to why the 135 Motion for Summary Judgment should not be granted within 30 days. (Spichka, K.)

Case 2:21-cv-01992-KJM-AC Document 136 Filed 03/06/23 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY PAUL SMITH,

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No. 2:21-cv-1992 KJM AC P

Plaintiff,
v.

ORDER

MUNICIPALITY OF FRESNO, et al.,

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Defendants.

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Plaintiff, a former state prisoner proceeding pro se and in forma pauperis, has filed this

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civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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For the following reasons, plaintiff will be directed to complete and file an application to

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proceed in forma pauperis by a non-prisoner. In addition, plaintiff will be ordered to show cause

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why defendant’s motion for summary judgment should not be granted. In the alternative, plaintiff

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will be given a final opportunity to file a response to defendants’ motion for summary judgment.

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I.

IN FORMA PAUPERIS APPLICATION FOR NON-PRISONER

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In December 2022, and in January 2023, plaintiff filed notices with the court that he had

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changed addresses. ECF Nos. 132, 134. The address provided does not appear to be a prison

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location. See id. In addition, a search for plaintiff by name and by prison inmate number yielded

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a “no records found” result. See https://inmatelocator.cdcr.ca.gov/Results.aspx (search CDCR
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Case 2:21-cv-01992-KJM-AC Document 136 Filed 03/06/23 Page 2 of 2
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Number field for “H49197” or search Last Name field for “Smith”, First Name field for “Gary”)

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(last visited March 3, 2023). Accordingly, it appears plaintiff is no longer incarcerated, and he

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will be directed to file an application to proceed in forma pauperis for non-prisoners. See e.g.

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Adler v. Gonzalez, 2015 WL 4041772, at *1, 2015 U.S. Dist. LEXIS 85909 (E.D. Cal. July 1,

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2015), report and recommendation adopted, 2015 WL 4668668, 2015 U.S. Dist. LEXIS 103386

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(E.D. Cal. Aug. 6, 2015) (Case No. 1:11-CV-1915 LJO MJS) (stating released prisoner may

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proceed under non prisoner provisions of in forma pauperis statute after submitting updated

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poverty affidavit). Plaintiff will be given thirty days to do so. The Clerk of Court will be directed

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to send plaintiff the appropriate form.

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II.

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On January 20, 2023, defendants filed a motion for summary judgment. ECF No. 135.

ORDER TO SHOW CAUSE

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Local Rule 230 requires that plaintiff file either an opposition or a statement of non-opposition.

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See generally L.R. 230(c), (l). To date, plaintiff has not filed a response to defendants’ motion.

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Therefore, he will be ordered to show cause why defendants’ motion should not be granted and

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do so within thirty days. In the alternative, plaintiff may file a response to the motion for

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summary judgment.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of Court shall send plaintiff a copy of the court’s in forma pauperis

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application for a non-prisoner;
2. Within thirty days of the date of this order, plaintiff shall file the in forma pauperis
application for a non-prisoner with the court, and
3. Within thirty days of the date of this order, plaintiff shall file a showing of cause why

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defendants’ motion for summary judgment (ECF No. 135) should not be granted. In the

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alternative, within the same period, plaintiff may file a response to defendants’ motion for

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summary judgment.

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DATED: March 3, 2023

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