(PC) Polk v. Lattimore ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SUSAN MAE POLK, Case No. 1:12-cv-01156-DAD-BAM (PC) 12 Plaintiff, ORDER CLARIFYING DEADLINE TO FILE PLAINTIFF’S OPPOSITION TO MOTION 13 v. FOR SUMMARY JUDGMENT 14 LATTIMORE, et al., (ECF No. 147) 15 Defendants. Opposition Due: August 16, 2021 16 17 18 Plaintiff Susan Mae Polk (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s 20 fifth amended complaint against Defendant Baron for retaliation in violation of the First 21 Amendment and deliberate indifference in violation of the Eighth Amendment. 22 On July 23, 2021, Defendant Baron filed a motion for summary judgment for failure to 23 exhaust administrative remedies. (ECF No. 147.) In that motion, Defendant incorrectly states 24 that Plaintiff’s written opposition to the summary judgment motion “must be filed not more than 25 fourteen days after the date of service of the motion.” (Id. at 2.) 26 By the instant order, the Court clarifies that pursuant to Local Rule 230(l), Plaintiff’s 27 opposition to Defendant’s motion for summary judgment shall be served and filed “not more 28 than twenty-one (21) days after the date of service of the motion.” Local Rule 230(l) 1 (emphasis added). In addition, pursuant to Federal Rule of Civil Procedure 6(d), Plaintiff is 2 allowed an additional three (3) days following service made by mail. Finally, pursuant to the 3 prison mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the date the 4 prisoner delivered it to the prison authorities for mailing to the court clerk. See Houston v. Lack, 5 487 U.S. 266, 270 (1988); Douglas v. Noelle, 567 F.3d 1103, 1108–09 (9th Cir. 2009) (mailbox 6 rule articulated in Houston applies to civil rights actions). 7 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s opposition to Defendant’s 8 motion for summary judgment is due on or before August 16, 2021. Plaintiff is further warned 9 that failure to file an opposition in compliance with the Court’s order will result in dismissal 10 of this action, with prejudice, for failure to prosecute. 11 IT IS SO ORDERED. 12 13 Dated: August 2, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28