Silverman v. Christian

• Court: District Court, N.D. California
• Decided: June 10, 2022
• Docket: 5:20-cv-05136
• Status: Unknown

Opinion

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8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 JACOB SILVERMAN, Case No. 20-cv-05136 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL; v. TERMINATING PENDING 13 MOTION AS MOOT 14 DUANE CHRISTIAN, et al.,

15 Defendants. (Docket No. 25) 16 17

18 Plaintiff, a California state pretrial detainee, filed a pro se civil rights complaint 19 under 42 U.S.C. § 1983, against jail officers and medical personnel at the Humboldt 20 County Correctional Facility (“HCCF”), where he was formerly housed. The Court found 21 the complaint, Dkt. No. 1, stated a cognizable claim under the Fourteenth Amendment and 22 ordered the matter served on Defendants.1 Dkt. No. 13. Defendants Iver Lein, A. 23 Barnhart, and Dr. Daniel Ziegler filed a motion for summary judgement along with papers 24

25 1 As their first response, Defendants Duane Christian, Dean Flint, and Jason Benge filed a 26 motion to dismiss, Dkt. No. 17, which the Court granted. Dkt. No 27. The Court dismissed the claims against these defendants and ordered them terminated from the 27 action. Id. at 7. 1 in support. Dkt. Nos. 25, 25-1, 25-2. Defendants filed proof of service of their summary 2 judgment on Plaintiff. Dkt. No. 25-4. However, Plaintiff did not file an opposition. 3 The Court notes that mail sent to Plaintiff by the Clerk of the Court to the address 4 he provided, Dkt. No. 1-1, have been returned as undeliverable with the stamp, “Return to 5 Sender; Unclaimed; Unable to Forward.” Dkt. Nos. 26, 30. It is also unknown whether 6 Plaintiff actually received his copy of Defendants’ summary judgment motion. 7 District courts unquestionably have the power to grant summary judgment sua 8 sponte. See Fed. R. Civ. P. 56(f) (explaining that district court may grant summary 9 judgment “for a nonmovant,” “on grounds not raised by a party,” or “on its own”); Fuller 10 v. City of Oakland, 47 F.3d 1522, 1533 (9th Cir. 1995). But sua sponte grants of summary 11 judgment are only appropriate if the losing party has (1) reasonable notice that the 12 sufficiency of his claim will be at issue and (2) a full and fair opportunity to ventilate the 13 issues. See Norse v. Santa Cruz, 629 F.3d 966, 971-72 (9th Cir. 2010); Oluwa v. Gomez, 14 133 F.3d 1237, 1239 (9th Cir. 1998); Fuller, 47 F.3d at 1533. Furthermore, a district court 15 may not grant a motion for summary judgment solely because the opposing party has 16 failed to file an opposition. See Cristobal v. Siegel, 26 F.3d 1488, 1494-95 & n.4 (9th Cir. 17 1994) (unopposed motion may be granted only after court determines that there are no 18 material issues of fact). Because it is unclear whether Plaintiff received notice of 19 Defendants’ motion for summary judgment and therefore given a full and fair opportunity 20 to ventilate the issues, the Court finds it is inappropriate to rule on Defendants’ summary 21 judgment under Norse, 629 F.3d at 971-72. 22 However, Plaintiff’s failure to update the Court with a current address is grounds 23 for dismissal. Pursuant to Northern District Local Rule 3-11, a party proceeding pro se 24 must promptly file a notice of change of address while an action is pending. See L.R. 3- 25 11(a). The Court may, without prejudice, dismiss a petition when: (1) mail directed to the 26 pro se party by the Court has been returned to the Court as not deliverable, and (2) the 27 Court fails to receive within sixty days of this return a written communication from the pro 1 || se party indicating a current address. See L.R. 3-11(b). 2 More than sixty days have passed since the last mail addressed to Plaintiff was 3 || returned as undeliverable on February 10, 2022. Dkt. No. 30. The Court has not received 4 || anotice from Plaintiff of a new address or any further communication from him. 5 || Accordingly, this action must be dismissed pursuant to the Court’s Local Rule 3-11. 6 7 CONCLUSION 8 For the reasons stated above, the instant action is DISMISSED without prejudice 9 || pursuant to Rule 3-11 of the Northern District Local Rules. 10 Defendants Iver Lein, A. Barnhart, and Dr. Daniel Ziegler’s motion for summary 11 || judgment shall be terminated as moot in light of this dismissal. Dkt. No. 25. 3s 12 This order terminates Docket No. 25. E 13 IT IS SO ORDERED.

14 |] Dated: ___ June 10, 2022 bod Chur amen 15 BETH LABSON FREEMAN United States District Judge 16

Oo Z 18 19 20 21 22 23 24 25 Order of Dismissal PRO-SE\BLF\CR.20\05136Silverman_LR3-11dism 26 27 28