(PC) Felix v. Clendenin ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT EMERSON FELIX, Case No. 1:19-cv-01784-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION TO DISMISS AS MOOT 13 v. (ECF No. 28) 14 CLENDENIN, et al., Plaintiff’s Opposition or Statement of Non- 15 Defendants. Opposition to Motion to Dismiss Due: September 14, 2022 16 17 Plaintiff Scott Emerson Felix (“Plaintiff”) is a civil detainee proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare 19 and Institution Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of 20 the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). 21 As Plaintiff is a civil detainee and has paid the filing fee, he is not a prisoner or 22 proceeding in forma pauperis, and therefore the Court ordered the complaint to be served without 23 screening by the Court. (ECF No. 13.) This action therefore proceeds on Plaintiff’s complaint, 24 filed December 23, 2019, (ECF No. 1), against Defendants California Department of State 25 Hospitals (“DSH”), Department of State Hospitals – Coalinga (“DSH – Coalinga”), Stephanie 26 Clendenin, Brandon Price, Francis Hicks, and Matthew Zelt. 27 On November 29, 2021, Defendants DSH, DSH – Coalinga, Clendenin, Price, and Hicks 28 filed a motion to dismiss. (ECF Nos. 28–30.) Following Plaintiff’s failure to file an opposition 1 or other response, the Court issued an order for Plaintiff to show cause why this action should not 2 be dismissed, with prejudice, for failure to prosecute. (ECF No. 37.) Plaintiff filed a response 3 indicating that he never received a copy of the motion to dismiss and was therefore unable to file 4 a response. (ECF No. 38.) Accordingly, on July 28, 2022, the Court ordered Defendants to re- 5 serve a copy of the November 9, 2021 motion to dismiss to Plaintiff at his current address of 6 record, including Plaintiff’s patient number, within seven (7) days from the date of service of that 7 order. (ECF No. 39.) The deadline for Plaintiff to file his opposition or statement of non- 8 opposition to the motion to dismiss was also extended. (Id.) 9 On August 2, 2022, Defendants DSH, DSH – Coalinga, Clendenin, Price, and Hicks re- 10 filed the motion to dismiss in its entirety, with the addition of new proofs of service indicating 11 service on Plaintiff at his current address and including Plaintiff’s patient number. (ECF No. 42.) 12 As this motion is now duplicative of the November 9, 2021 motion to dismiss, the Court finds it 13 appropriate to deny the November 9, 2021 motion to dismiss as moot. Pursuant to the Court’s 14 July 28, 2022 order, Plaintiff’s opposition to Defendants’ motion to dismiss remains due on or 15 before September 14, 2022. (See ECF No. 39.) 16 Accordingly, IT IS HEREBY ORDERED as follows: 17 1. Defendants’ November 29, 2021 motion to dismiss, (ECF No. 28), is DENIED as moot; 18 2. Plaintiff’s opposition or statement of non-opposition to Defendants’ August 2, 2022 19 motion to dismiss, (ECF No. 42), remains due on or before September 14, 2022; and 20 3. Plaintiff is warned that if he fails to comply with the Court’s order, this matter will 21 be dismissed, with prejudice, for failure to prosecute and failure to comply with a 22 court order. 23 IT IS SO ORDERED. 24 25 Dated: August 3, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28