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

Filing 150

ORDER signed by Magistrate Judge Allison Claire on 09/18/2023 DIRECTING plaintiff to file the following: a Notice of Change of Address with the court within 7 days and a Non-Prisoner IFP application and a proper response to defendants' 135 Motion for Summary Judgment within 30 days. Within 7 days from the date of this order, defendants shall serve plaintiff with a copy of their 135 Motion for Summary Judgment if they have not already done so. (Spichka, K.)

Case 2:21-cv-01992-DJC-AC Document 150 Filed 09/18/23 Page 1 of 4
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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 DJC AC P

Plaintiff,
v.

ORDER

MUNICIPALITY OF FRESNO COUNTY,
et al.,
Defendants.

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Plaintiff, a former state prisoner proceeding pro se, seeks relief under 42 U.S.C. § 1983.

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The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)

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and Local Rule 302. Dispositive motions are before the court. See ECF Nos. 135, 144 (parties’

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motions for summary judgment). Recently, however, several orders issued by the court and sent

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to plaintiff have been returned as undeliverable.

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For the reasons stated below, plaintiff will be given a single opportunity to file a change

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of address form with this court. In addition, given the circumstances, plaintiff will also be given a

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final opportunity to file a non-prisoner application with the court as well as a proper response to

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defendants’ motion for summary judgment. Finally, the Clerk of Court will be directed to send a

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copy of the docket and certain court orders to plaintiff, and defendants will be ordered to send

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plaintiff a copy of their motion for summary judgment if they have not already done so.
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Case 2:21-cv-01992-DJC-AC Document 150 Filed 09/18/23 Page 2 of 4
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I.

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

RELEVANT BACKGROUND

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On March 6, 2023, because plaintiff had not filed a response to defendants’ motion, he was

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ordered either to show cause why this matter should not be dismissed or, in the alternative, to file

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a response to defendants’ motion. ECF No. 136. In addition, plaintiff was ordered to complete

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and file a non-prisoner in forma pauperis application with the court. Id. at 2. He was given 30

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days to do both. Id.

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On March 20, 2023, the court’s order was returned to it marked “Undeliverable,
Attempted not known, Unable to forward.” Since then, five other orders issued by the court have

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been returned (see docket indicating same). At the same time, plaintiff has continued to file

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documents in this case. See ECF Nos. 138, 143, 144, 147, 148. To date, however, plaintiff has

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not filed the non-prisoner in forma pauperis application, nor has he filed a response to defendants’

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motion for summary judgment.1

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II.

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On close review of the timeline of docket entries, it appears that plaintiff has failed to file

DISCUSSION

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a change of address form with this court. This may be why court orders sent to plaintiff since

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March of this year have been returned and consequently, why plaintiff has not responded to any

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of them.

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The last address of record the court has for plaintiff is one on Butternut Avenue in

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Bakersfield, California. See ECF Nos. 132, 134 (change of address forms). However it appears

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that since March of 2023, plaintiff may have been receiving mail at an address on W.

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Whitesbridge Avenue in Kerman, California. See ECF Nos. 138 at 1; 143 at 1 (return addresses

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on documents filed in this court). Documents filed by defendant since March 27, 2023, indicate

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that they have been serving plaintiff at both addresses. See, e.g., ECF No. 140 at 3 (defendants’

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proof of service regarding deposition transcript); ECF No. 146 at 5 (defendants’ proof of service

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On March 22, 2023, a filing by plaintiff which included a general and vague “opposition” to
defendants’ motion for summary judgment was docketed. ECF No. 138. The motion, however,
as well as defendants’ reply to it, were eventually disregarded by the court. ECF No. 149 at 3-4.
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Case 2:21-cv-01992-DJC-AC Document 150 Filed 09/18/23 Page 3 of 4
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regarding opposition to plaintiff’s second motion for summary judgment).
It is plaintiff’s responsibility to file change of address forms with the court and to do so

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consistently. See Local Rule 183(b). Plaintiff’s failure to do so in this case could have resulted

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in the court dismissing this matter for failure to prosecute. See id. Furthermore, the court is not

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obligated to try to determine plaintiff’s last valid address by combing through recent documents

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he has filed. Despite these facts, because plaintiff has been fairly diligent in attempting to move

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this case forward, the court will presume that plaintiff’s failure to file a change of address notice

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with the court after his last move was an oversight, and he will be given a single opportunity to

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file one with the court. In addition, the Clerk of Court will be directed to send plaintiff a copy of

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the docket, as well as copies of all orders issued by the court since March 6, 2023. The

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documents will be ordered sent to the address on Whitesbridge Avenue as well as to the Butternut

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Avenue address that is currently listed on the docket. Finally, because it appears that defendants

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only served their motion for summary judgment on plaintiff at the Butternut address (see ECF

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No. 135-12 at 2) (defendants’ proof of service form), defendants will be ordered to serve it at the

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Whitesbridge Avenue address if they have not already done so.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of Court shall send plaintiff copies of the following:

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a. A copy of the docket;

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b. The court’s in forma pauperis application for a non-prisoner; and

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c. All orders issued by the court, beginning with the order issued on March 6, 2023

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(ECF No. 136).
The documents shall be sent to the Butternut Avenue address listed on file and to the W.
Whitesbridge address listed at ECF No. 143 at 1.
2. Within seven days from the date of this order, plaintiff shall file a change of address
form with the court. See Local Rule 183(b).
3. Within thirty days from the date of this order, plaintiff shall file:

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a. A non-prisoner in forma pauperis application, and

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b. A proper response to defendants’ motion for summary judgment that is consistent
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Case 2:21-cv-01992-DJC-AC Document 150 Filed 09/18/23 Page 4 of 4
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with the Federal Rules of Civil Procedure and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).

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4. Within seven days from the date of this order, defendants shall serve plaintiff with a

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copy of their motion for summary judgment filed January 20, 2023 (ECF No. 135 et seq.), if they

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have not already done so.

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Plaintiff is cautioned that absent exigent circumstances, no extensions of the

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deadlines specified above will be granted. Plaintiff is further cautioned that failure to

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timely file all three documents with the court is likely to result in a recommendation that

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this matter be dismissed.

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DATED: September 18, 2023

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