August 9, 2013
DAYON D. LIVELY, Plaintiff,
ROBERT TOVAR, et al., Defendant.
ORDER GRANTING UNOPPOSED MOTION FOR JUDGMENT ON THE PLEADINGS; AND ORDER TO SHOW CAUSE
LARRY ALAN BURNS, District Judge.
On January 24, 2011, Plaintiff Dayon Lively, a prisoner in state custody, filed his complaint in this action bringing claims pursuant to 42 U.S.C. § 1983. This matter was referred to Magistrate Judge Mitchell Dembin for report and recommendation.
One Defendant, Afshid Nahavandi, moved to dismiss. Judge Dembin issued his report and recommendation, recommending dismissing claims against that Defendant. On March 12, 2012, the Court adopted the unobjected-to report and recommendation and dismissed claims against that Defendant. Then on May 24, 2013, the remaining served Defendants moved for judgment on the pleadings or, in the alternative, for summary judgment. Judge Dembin on June 19, 2013 issued the notice required under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), cautioning Lively that he had to oppose the motion, that his written opposition had to be filed by July 22, 2013, and that failure to file an opposition could result in judgment being entered against him.
Lively did submit a request for additional time to file an opposition to the motion for summary judgment, but Judge Dembin on June 28 rejected it on a discrepancy order (Docket no. 50), noting that the request was moot because an extension had already been granted by the order containing the Klingele notice. The rejected document asked that the June 28 hearing date be extended because Lively didn't receive the summary judgment motion until about eighteen days after it was filed. Judge Dembin continued the June 28 hearing until August 12, which more than made up for the time Lively lost.
Lively never sought any additional extensions of time, nor did he object to any of Judge Dembin's rulings. July 22 has come and gone, and Lively has not filed an opposition or anything else. Although he is entitled to the benefit of the "prisoner mailbox rule, " See Ugalde v. Chase, 2013 WL 1183321, at *3 n.2 (D. Or., March 21, 2013) (noting that courts have applied the "prisoner mailbox rule" to a variety of legal documents, including responses to oppositions to summary judgment), an opposition mailed from the prison where Lively is held should have arrived long before now.
The Court concludes that Lively does not intend to oppose the motion for judgment on the pleadings or summary judgment. In view of this, there is no reason to require Judge Dembin to issue a report and recommendation on Defendants' motion. The reference of this motion to Judge Dembin is therefore WITHDRAWN, and the unopposed motion is GRANTED. See Civil Local Rule 7.1(f)(e)(c) (providing that failure to file an opposition may constitute consent to the motion's being granted). All claims against Defendants Mills, Tovar, Kirby, Ko, Escribano, Abbott, Alvarado, and Carreno are DISMISSED WITH PREJUDICE.
The only remaining Defendant is Sgt. Miguel Trujillo. Trujillo has not appeared or waived service, nor has proof of service on Trujillo been filed. Since filing the complaint, Lively has taken no steps to prosecute his claims against Trujillo. If Lively still wishes to pursue claims against Trujillo, he must show cause for his failure to serve Trujillo and failure to prosecute. He may do so by filing a memorandum of points and authorities not to exceed five pages, no later than August 26, 2013, showing 1) either that he served Trujillo, or why his failure to serve Trujillo should be excused; and 2) why his failure to prosecute claims against Trujillo should be excused. Lively must show both, not just one. If he fails to show cause within the time permitted, his remaining claims will be dismissed in accordance with Fed.R.Civ.P. 4(m) and 41(b), and Civil Local Rule 41.1, and this action will be dismissed with prejudice.
If Lively does not intend to pursue claims against Trujillo, he need not do anything, and this action will be dismissed with prejudice.
IT IS SO ORDERED.