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Nunnery v. Luzadas

United States District Court, E.D. California

April 3, 2014

ALFRED OSHUN NUNNERY, Plaintiff,
v.
J. LUZADAS, Defendant.

ORDER[1]

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a former state prisoner proceeding without counsel in this civil rights action filed pursuant to 42 U.S.C. ยง 1983. This action proceeds on plaintiff's Amended Complaint (ECF No. 11), pursuant to plaintiff's allegations that sole defendant Correctional Officer Luzadas pepper sprayed plaintiff's eyes while plaintiff was restrained.[2] (ECF No. 11 at 4.)

On December 13, 2013, defendant filed a motion for summary judgment.[3] (ECF No. 38.) Plaintiff was twice served with defendant's motion, initially at his prior place of incarceration, High Desert State Prison (HDSP), on December 13, 2013 (see ECF No. 38 at 26), and subsequently, on December 17, 2013, at the address plaintiff provided to defense counsel after he was paroled (see ECF No. 44).

Defendant's counsel informed the court of plaintiff's new lay address. (See ECF No. 45-6.) The court notes that plaintiff has not filed a notice of change of address, as required by Local Rule 183(b), but his name no longer appears in the "Inmate Locator" website maintained by the California Department of Corrections and Rehabilitation.

Construing the service dates of defendant's motion in plaintiff's favor, plaintiff's opposition to the motion (or statement of non-opposition) was due on or before January 10, 2014. See Local Rule 230(l) (opposition or statement of non-opposition due within 21 days after service); see also Fed.R.Civ.P. 6(d) (according additional 3 days for service). However, plaintiff did not respond to the motion. Thereafter, this court twice directed plaintiff to file an opposition to defendant's motion, or a statement of non-opposition. See Orders filed Feb. 25, 2014 (ECF No. 47) (served on plaintiff at HDSP), and March 13, 2014 (ECF No. 48) (served on plaintiff at both HDSP and his lay address). Both orders were returned from HDSP as "undeliverable, " confirming plaintiff's parole. (See Docket Entries dated March 7, 2014, and March 31, 2014.)

The orders (ECF No. 47, 48) served on plaintiff at his lay address were not returned. (See Docket Entry dated March 13, 2014.) Significantly, the most recent order, filed March 13, 2014, informed plaintiff that "[f]ailure of plaintiff to file a notice of change of address, and file and serve an opposition to defendant's motion for summary judgment, within fourteen (14) days after the filing date of this order, shall result in the dismissal of this action." (ECF No. 48 at 2.) More than fourteen days have passed, and plaintiff has not responded to the court's order or to defendant's motion.

Accordingly, IT IS HEREBY ORDERED that:

1. This action is dismissed without prejudice, see Fed.R.Civ.P. 41(b); and

2. The Clerk of Court is directed to close this case.


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