(PC) Rhodes v. Ruiz

• Court: District Court, E.D. California
• Decided: January 16, 2025
• Docket: 1:21-cv-00942
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PERCY LEE RHODES, Case No. 1:21-cv-00942-CDB (PC)

12 Plaintiff, ORDER TO SHOW CAUSE IN WRITING WHY SANCTIONS SHOULD NOT BE 13 v. IMPOSED FOR PLAINTIFF’S FAILURE TO FILE AN OPPOSITION OR 14 JOSEPH RUIZ, et al., STATEMENT OF NON-OPPOSITION

15 Defendants. 14-DAY DEADLINE

17 18 Plaintiff Percy Lee Rhodes is a former county jail inmate proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action1 proceeds on 20 Plaintiff’s Eighth Amendment deliberate indifference to serious medical needs claims against 21 Defendants Ruiz, Lightner, and McComas, First Amendment access to courts claim against 22 Defendant Cortez, and Eighth Amendment failure to protect and failure to train claims against 23 Defendants Lightner and McComas. 24 I. INTRODUCTION 25 On December 23, 2024, Defendant Cortez filed a motion for summary judgment,2 or 26 1 This action was reassigned to the undersigned for “all further purposes and proceedings, including trial and entry of 27 judgment,” on October 26, 2023. (See Doc. 36.)

2 1 alternatively, summary adjudication. (See Doc. 51.) The motion included a Rand3 warning. (Doc. 2 51-3.) The following day, Defendant McComas filed a motion for summary judgment. (See Doc. 3 52.) It too included a Rand warning. (Doc. 52-4.) 4 Despite the passage of more than twenty-one days, Plaintiff has failed to file an opposition 5 or statement of non-opposition to either summary judgment motion. 6 II. DISCUSSION 7 Rule 56 of the Federal Rules of Civil Procedure concerns summary judgment. It provides, 8 in relevant part: 9 Failure to Properly Support of Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address 10 another party’s assertion of fact as required by Rule 56(c), the court may: 11 (1) give an opportunity to properly support or address the fact; 12 (2) consider the fact undisputed for purposes of the motion; 13 (3) grant summary judgment if the motion and supporting 14 materials—including the facts considered undisputed—show that the movant is entitled to it; or 15 (4) issue any other appropriate order. 16 17 Fed. R. Civ. P. 56(e). This Court’s Local Rules, corresponding with Federal Rule of Civil 18 Procedure 11, provide that a “[f]ailure of counsel or of a party to comply with these Rules or with 19 any order of the Court may be grounds for the imposition by the Court of any and all sanctions 20 authorized by statute or Rule or within the inherent power of the Court.” See Local Rule 110. 21 Further, Local Rule 230 states: 22 Opposition, if any, to the granting of a motion shall be served and filed by the responding party not more than twenty-one (21) days 23 after the date of service of the motion. A responding party who has no opposition to the granting of the motion shall serve and file a 24 statement to that effect, specifically designating the motion in question. Failure of the responding party to file an opposition or 25 statement of no opposition may be deemed a waiver of any opposition to the granting of the motion and may result in the 26 imposition of sanctions. 27 Local Rule 230(l). Therefore, Plaintiff’s opposition or statement of non-opposition to the pending ene nn eee I EEE EI IEE OE ESE IEEE EO

1 | motions for summary judgment were due on or before January 13, 2025, and January 14, 2025, 2 | respectively. Notably too, Plaintiff is no longer detained in the Fresno County Jail. The docket for 3 | this action reflects Plaintiff's address as of August 14, 2024, is a residence on Clinton Avenue in 4 | Fresno, California. (Doc. 49.) As a result, the mailbox rule does not apply.* In sum, Plaintiff has 5 | failed to timely file an opposition or statement of non-opposition to both motions, and the time to 6 | do so has now passed. 7 Il. CONCLUSION AND ORDER 8 Accordingly, the Court ORDERS Plaintiff to show cause in writing, within 14 days of 9 | the date of service of this order, why sanctions should not be imposed for his failure to comply 10 || with the Local Rules. Alternatively, within that same time, Plaintiff may file an opposition or 11 | statement of non-opposition to the pending motions for summary judgment filed on December 23, 12 | 2024, and December 24, 2024, respectively. 13 Any failure by Plaintiff to respond to this Order may result in the dismissal of this 14 | action for a failure to obey court orders and a failure to prosecute. 15 | IT IS SOORDERED. 16 ) | 2 — Dated: _ January 16, 2025 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 2A * See Houston v. Lack, 487 U.S. 266, 270 (1988) (pro se prisoner pleading deemed filed when delivered to prison authorities); Douglas v. Noelle, 567 F.3d 1103, 1108-09 (9th Cir. 2009) (applying mailbox rule to civil rights 25 actions). But see Emasealu v. Gomez, No. 1:22-cv-01326-HBK (PC), 2023 WL 5614937, at *1, n.2 (E.D. Cal. Aug. 30, 2023) (“Because Plaintiff is no longer incarcerated, he is not entitled to the mailbox rule”); Russo v. Arigalva, No. 26 1:23-cv-00703-HBK (PC), 2023 WL 5934802, at *1,n.2 (E.D. Cal. Sept. 12, 2023) (same); Estrada v. North Kern State Prison, No. 1:18-cv-00667-DAD-SAB (PC), 2020 WL 590114, at *2 (E.D. Cal. Feb. 6, 2020) (“the Court a7 reminds Plaintiff that, now that he has been released from custody, the prison mailbox rule no longer applies to his filings. ... In the future, Plaintiff should ensure that any motions for extension of time, or other responses to Court 28 deadlines, are mailed to the Court so they will be received by the applicable deadline”).