Alexander v. Dutton

Filing 27

ORDER - The Court WITHDRAWS its report and recommendation(ECF No. 23 ). Plaintiff has TWENTY-ONE days from the date of this Order to file and serve his response to Defendant's motion for summary judgment (ECF No. 19 ). The Clerk shall SEND Plaintiff a copy of Defendant's motion for summary judgment and accompanying exhibits along with a copy of this order. (Mailed 11/22/2016.) Signed by Magistrate Judge William G. Cobb on 11/22/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEMETRI ALEXANDER,
Plaintiff,

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ORDER

v.

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Case No. 3:15-cv-00074-MMD-WGC

GARY DUTTON,
Defendant.

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The court screened Plaintiff’s original complaint and dismissed it with leave to amend on

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May 27, 2015. (Electronic Case Filing (ECF) Nos. 7, 8.) Plaintiff filed his amended complaint on
June 1, 2015. (ECF No. 9.) Plaintiff filed a notice of change of address noting his move from
Northern Nevada Correctional Center (NNCC) to High Desert State Prison (HDSP) on
September 14, 2015. (ECF No. 12.) On December 10, 2015, the court issued a screening order
that allowed Plaintiff to proceed with a single claim against Gary Dutton under the Fourteenth
Amendment’s Due Process Clause related to the alleged authorized, intentional deprivation of
his blue jeans. (ECF No. 14.)
On February 2, 2016, the court issued an order scheduling an inmate early mediation

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conference. (ECF No. 16.) The conference was held on March 1, 2016, and Plaintiff appeared,
pro se. (See Minutes at ECF No. 17.) A settlement was not reached.
Defendant filed his motion for summary judgment on March 10, 2016. (ECF No. 19.) It

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was served on Plaintiff at HDSP, in accordance with his last change of address.
(ECF No. 19 at 9.)
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On March 11, 2016, the court issued a Klingele1 order advising Plaintiff his response was
due within twenty-one days. (ECF No. 20.) Plaintiff’s in forma pauperis application was granted
on March 14, 2016. (ECF No. 21.) As with Defendant’s Motion for Summary Judgment, the
court’s Klingele order was mailed to Plaintiff at HDSP. (ECF No. 20.)
Plaintiff filed another notice of change of address on March 23, 2016, indicating a move
from HDSP to Southern Desert Correctional Center (SDCC). (ECF No. 22.) Plaintiff’s notice
was dated “3-18-16" but was not filed until March 23, 2016. (Id.) The docket reflects that the
Klingele order was re-mailed to Plaintiff, but was not received by Plaintiff until August 25,
2016, at SDCC in light of the change of address. (See ECF No. 20.) On August 31, 2016, the
undersigned issued a report and recommendation that Defendant’s motion for summary
judgment be granted on the basis that Plaintiff failed to exhaust his administrative remedies with
respect to his claim. (ECF No. 23.)
Plaintiff filed his objection to the report and recommendation on September 9, 2016.
(ECF No. 25.) Plaintiff states that he did not receive the minute order dated March 11, 2016 (the
Klingele order) and order dated March 14, 2016 (the order granting his in forma pauperis
application) until August 30, 2016, advising him that he had twenty-one days to file a response
to the motion for summary judgment. (ECF No. 25 at 2.) Before he could respond to the Motion
for Summary Judgment, on September 2, 2016, he received the undersigned’s report and
recommendation that summary judgment be granted. (Id.) As a result, he asks that the motion for
summary judgment be denied, and that his claim be allowed to proceed.
Defendant filed a response to the objection. (ECF No. 26.) Defendant asserts; (1) Plaintiff
does not support his request that the motion for summary judgment be denied because he did not
timely receive the referenced orders; (2) he does not argue that he was not served with the
motion for summary judgment; (3) he does not address whether he filed a proper grievance so as
to exhaust his administrative remedies; and (4) he provides no substantive reasoning for the
court to deny the report and recommendation.

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Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

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It is not clear when or even whether Plaintiff received Defendant’s motion for summary
judgment. Plaintiff does not specifically state that he was not served with the motion, but the
court acknowledges that it was served at HDSP around the time when he moved from HDSP to
SDCC. If he did not receive the Klingele order which went out one day after the motion for
summary judgment was filed, there is a chance he did not receive the motion for summary
judgment either.
Under Klingele, a pro se litigant must be provided with fair notice of the requirements of
the summary judgment rule. If Plaintiff did not receive this notice until shortly before the court
issued its report and recommendation, that notice was insufficient.
Therefore, the court hereby WITHDRAWS its report and recommendation
(ECF No. 23). Plaintiff acknowledges he is now in possession of the Klingele order; therefore,
Plaintiff has TWENTY-ONE days from the date of this Order to file and serve his response to
Defendant’s motion for summary judgment The Clerk shall SEND Plaintiff a copy of
Defendant’s motion for summary judgment and accompanying exhibits along with a copy of this
order. Defendant’s shall file their reply brief in accordance with the Local Rules. Once the
matter is fully briefed, the court will issue its report and recommendation.
IT IS SO ORDERED.
DATED: November 22, 2016.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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