ORDER GRANTING IN PART REQUEST FOR EXTENSION OF TIME (Doc. No. 21)
ORDER REQUIRING RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 23)
THIRTY-DAY DEADLINE
BARBARA A. MCAULIFFE, Magistrate Judge.
I. Introduction
Plaintiff Robert M. Colvin is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff's complaint for excessive force in violation of the Eighth Amendment against Defendants Cullen, Mesa, Lopez, Garcia, Ibarra and Waddel, and for deliberate indifference to serious medical needs in violation of the Eighth Amendment against Defendants Garcia, Martinez and Smith.
II. Motion for Extension of Time
On July 31, 2018, the Court issued an order directing the United States Marshal to initiate service of process of the complaint on the above-described Defendants, using the information that was provided by Plaintiff. (Doc. No. 15.)
On August 21, 2018, the Marshal returned unexecuted summonses for Defendants Garcia and Lopez, stating that there are multiple officers with these names and that they required further information to identify them. (Doc. No. 16.) On August 27, 2018, the Court ordered Plaintiff to show cause within thirty days why Defendants Garcia and Lopez should not be dismissed from this action for the failure to provide sufficient information to effectuate service of process. (Doc. No. 17.) Plaintiff did not respond to that order.
On October 9, 2018, the Court issued findings and recommendations recommending that Defendants Garcia and Lopez be dismissed, without prejudice, under Federal Rule of Civil Procedure 4(m) for the failure to effectuate service of process. (Doc. No. 20)
Currently before the Court is Plaintiff's request for an extension of time, filed on October 9, 2018, the same date that the findings and recommendations were issued. (Doc. No. 21.) Plaintiff states in support that his facility was on lockdown, limiting his access to legal materials. No specific deadline is sought to be extended.
In the meantime, Plaintiff has filed a change of address on November 5, 2018, which appears to show that he has now been released from custody. (Doc. No. 24.) However, the Court has received no objections or other response to the October 9, 2018 findings and recommendations.
In an abundance of caution, the Court will grant Plaintiff's request for an extension of time in part, and allow him further time to file an objection to the October 9, 2018 findings and recommendations, if any. Plaintiff's objection must be filed within thirty days. No further extensions will be granted absent a showing of good cause. The failure to respond will result in the dismissal of Defendants Garcia and Lopez, without prejudice.
III. Motion for Summary Judgement
On October 12, 2018, Defendants filed a motion for summary judgment for the failure to exhaust administrative remedies, pursuant to Federal Rule of Civil Procedure 56. (Doc. No. 23.) Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.1988); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). (Doc. 23-1.)
An opposition or statement of non-opposition to Defendants' summary judgment motion was due within twenty-one days of service. Local Rule 230(1). More than twenty-one days have passed, and Plaintiff has not filed any opposition or statement of non-opposition. As stated above, however, he has recently filed a notice of change of address, although it appears he was served with the summary judgment motion prior to the address change.
Plaintiff's deadline to oppose Defendants' summary judgment motion will be extended. He must file an opposition or statement of non-opposition within thirty days. The failure to comply with result in a dismissal of this action, with prejudice.
IV. Conclusion
For the reasons explained above, it is HEREBY ORDERED that:
1. Plaintiff's motion for an extension of time, filed on October 9, 2018 (Doc. No. 21) is granted in part;
2. Plaintiff's objection, if any, to the October 9, 2018 findings and recommendations is due within thirty days of this order;
3. Plaintiff's opposition or statement of non-opposition to Defendants' motion for summary judgment is due within thirty days of this order; and
4. No further extensions of time will be granted absent a showing of good cause. The failure to comply with this order will result in the sanctions, up to and including dismissal, discussed above.
IT IS SO ORDERED.
