Nogales v. Burke

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE NOGALES, Case No. 22-cv-702-MMA-DEB 12 Plaintiff, ORDER PROVIDING PRO SE 13 vs. NOTICE OF MOTION FOR SUMMARY JUDGMENT 14 PURSUANT TO KLINGELE/RAND; 15 BURKE, et al., 16 Defendants. VACATING HEARING AND SETTING BRIEFING SCHEDULE; 17 ORDERING PLAINTIFF TO 18 UPDATE MAILING ADDRESS 19 20 21 Plaintiff Jose Nogales, a former state prisoner proceeding pro se, brings this civil 22 rights action pursuant to 42 U.S.C. § 1983, alleging First and Fourteenth Amendment 23 claims against correctional staff Burke, Weiwel, Lopez, Narvaez, Tovar, Duarte, and 24 Martinez, and Secretary of the CDCR, Kathleen Allison. See Doc. No. 5. Defendants 25 have filed a motion for summary judgment as to Plaintiff’s claims. See Doc. No. 36. 26 Although Plaintiff is no longer incarcerated, in an abundance of caution, the Court 27 provides Plaintiff with the following notice pursuant to Rand v. Rowland, 154 F.3d 952 28 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988): 1 Defendants have filed a Motion for Summary Judgment, Doc. No. 36, seeking a 2 judgment in their favor. A Motion for Summary Judgment under Rule 56 of the Federal 3 Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 4 do to oppose a Motion for Summary Judgment. 5 Generally, summary judgment must be granted when there is no genuine issue of 6 material fact – that is, if there is no real dispute about any fact that would affect the result 7 of your case, the party who asked for summary judgment is entitled to judgment as a 8 matter of law, which will end your case. See Fed. R. Civ. P. 56. 9 When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what 11 your unverified complaint says. Instead, you must set out specific facts in declarations, 12 depositions, answers to interrogatories, or authenticated documents, as provided by Rule 13 56(e), that contradict the facts shown in the defendant’s declarations and documents and 14 show that there is a genuine issue of material fact for trial. 15 If you do not submit your own evidence in opposition, summary judgment, if 16 appropriate, may be entered against you. If summary judgment is granted, your case will 17 be dismissed and there will be no trial. 18 Defendants’ motion is currently calendared for hearing on November 27, 2023. 19 The Court VACATES the hearing date and SETS the following briefing schedule. 20 Your Opposition (including any supporting documents) must be filed and 21 served on all parties by November 20, 2023. 22 If you do not wish to oppose Defendants’ motion, you should file and serve a 23 “Notice of Non-Opposition” by that same date to let the Court know that Defendants’ 24 motion is unopposed. 25 If you do file and serve an Opposition, Defendants will have the option to file and 26 serve a Reply in support of their motion. Defendants’ Reply must be filed and served no 27 later than December 11, 2023. 28 The Court will then, in its discretion and unless otherwise ordered, consider 1 || Defendants’ Summary Judgment Motion on the briefs and without oral argument 2 || pursuant to Civil Local Rule 7.1.d.1. See Fed. R. Civ. P. 78(b). 3 Additionally, the Court notes that Plaintiff has not been incarcerated since at least 4 || June 2023 and has failed to update his mailing address despite being ordered to do so. 5 || See Doc. No. 31. The Court reminds Plaintiff that he is required under the Civil Local 6 || Rules to update his mailing address of record. Rule 83.11 provides: 7 8 A party proceeding pro se must keep the Court and opposing parties advised 9 as to current address. If mail directed to a pro se plaintiff by the Clerk at the plaintiff's last designated address is returned by the Post Office, and if such 10 plaintiff fails to notify the Court and opposing parties within 60 days thereafter 1 of the plaintiff's current address, the Court may dismiss the action without prejudice for failure to prosecute. 12 13 || CivLR 83.11.b. 14 More than sixty days have elapsed since Plaintiff was ordered to update his mailing 15 || address of record, see Doc. No. 31, and since mail was returned as undeliverable, see 16 || Doc. No. 33. Accordingly, the Court ORDERS Plaintiff to update his mailing address on 17 || or before October 30, 2023. Should Plaintiff fail to meet this deadline, the Court will 18 || dismiss this case without prejudice for failure to prosecute. 19 The Court DIRECTS the Clerk of Court to electronically send a copy of this Order 20 || to Plaintiff at nogalesjo30@gmail.com. 21 IT IS SO ORDERED. 22 ||Dated: October 23, 2023 23 Bide M —{ hillr 24 HON. MICHAEL M. ANELLO 25 United States District Judge 26 27 28