(PC) Smith v. Municipality of Fresno County ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARY PAUL SMITH, No. 2:21-cv-1992 KJM AC P 12 Plaintiff, 13 v. ORDER 14 MUNICIPALITY OF FRESNO, et al., 15 Defendants. 16 17 Plaintiff, a former state prisoner proceeding pro se and in forma pauperis, has filed this 18 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 For the following reasons, plaintiff will be directed to complete and file an application to 21 proceed in forma pauperis by a non-prisoner. In addition, plaintiff will be ordered to show cause 22 why defendant’s motion for summary judgment should not be granted. In the alternative, plaintiff 23 will be given a final opportunity to file a response to defendants’ motion for summary judgment. 24 I. IN FORMA PAUPERIS APPLICATION FOR NON-PRISONER 25 In December 2022, and in January 2023, plaintiff filed notices with the court that he had 26 changed addresses. ECF Nos. 132, 134. The address provided does not appear to be a prison 27 location. See id. In addition, a search for plaintiff by name and by prison inmate number yielded 28 a “no records found” result. See https://inmatelocator.cdcr.ca.gov/Results.aspx (search CDCR 1 || Number field for “H49197” or search Last Name field for “Smith”, First Name field for “Gary”) 2 | (last visited March 3, 2023). Accordingly, it appears plaintiff is no longer incarcerated, and he 3 || will be directed to file an application to proceed in forma pauperis for non-prisoners. See e.g. 4 | Adler v. Gonzalez, 2015 WL 4041772, at *1, 2015 U.S. Dist. LEXIS 85909 (E.D. Cal. July 1, 5 || 2015), report and recommendation adopted, 2015 WL 4668668, 2015 U.S. Dist. LEXIS 103386 6 || (E.D. Cal. Aug. 6, 2015) (Case No. 1:11-CV-1915 LJO MJS) (stating released prisoner may 7 || proceed under non prisoner provisions of in forma pauperis statute after submitting updated 8 | poverty affidavit). Plaintiff will be given thirty days to do so. The Clerk of Court will be directed 9 || to send plaintiff the appropriate form. 10 Il. ORDER TO SHOW CAUSE 11 On January 20, 2023, defendants filed a motion for summary judgment. ECF No. 135. 12 || Local Rule 230 requires that plaintiff file either an opposition or a statement of non-opposition. 13 || See generally L.R. 230(c), (1). To date, plaintiff has not filed a response to defendants’ motion. 14 | Therefore, he will be ordered to show cause why defendants’ motion should not be granted and 15 || do so within thirty days. In the alternative, plaintiff may file a response to the motion for 16 || summary judgment. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. The Clerk of Court shall send plaintiff a copy of the court’s in forma pauperis 19 || application for a non-prisoner; 20 2. Within thirty days of the date of this order, plaintiff shall file the in forma pauperis 21 || application for a non-prisoner with the court, and 22 3. Within thirty days of the date of this order, plaintiff shall file a showing of cause why 23 || defendants’ motion for summary judgment (ECF No. 135) should not be granted. In the 24 || alternative, within the same period, plaintiff may file a response to defendants’ motion for 25 || summary judgment. . . 26 || DATED: March 3, 2023 Lhttwdrr— Chane 7 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 28