(PC) Espinoza v. Diaz, No. 1:2014cv00872 - Document 24 (E.D. Cal. 2015)
Court Description: ORDER WITHDRAWING 22 FINDINGS AND RECOMMENDATIONS to Grant Defendant's Motion for Summary Judgment signed by Magistrate Judge Jennifer L. Thurston on 11/10/2015. Seven (7) day defense deadline. (Jessen, A)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 ISRRAEL ESPINOZA, Plaintiff, 12 v. 13 14 15 DIAZ, Case No. 1:14-cv-00872-JLT (PC) ORDER WITHDRAWING FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 22) Defendant. SEVEN DAY DEFENSE DEADLINE 16 17 Plaintiff is proceeding against Defendant Diaz for excessive force in violation of the 18 Eighth Amendment. On October 7, 2014, Defendant filed a motion to dismiss which was 19 converted to a motion for summary judgment since it raised the issue of whether this action is 20 barred under Heck v. Humphrey, 512 U.S. 477, 487-88 (1994), which may only be considered 21 under Federal Rule of Civil Procedure 56. (Doc. 18.) Plaintiff was given notice of the 22 requirements to oppose a motion for summary judgment and, while his request to 23 postpone/continue the motion for summary judgment was denied, he was granted an extension of 24 time to September 20, 2015 to file his opposition. (Doc. 21.) 25 On September 29, 2015, a Findings and Recommendation to grant Defendant’s motion 26 issued. (Doc. 22.) Later that same day, Plaintiff’s opposition was filed which reflects that 27 Plaintiff gave it to prison staff for mailing to this Court on September 9, 2015. (Doc. 23.) 28 1 1 A document is deemed filed on the date a prisoner delivers it “to prison authorities for 2 forwarding to the [d]istrict [c]ourt.@ Houston v. Lack, 487 U.S. 266, 270 (1988). The Ninth 3 Circuit has held that the Houston rule applies whenever the prisoner has utilized an internal prison 4 mail system and the record allows the court to determine the date on which the filing was turned 5 over to prison authorities. Caldwell v. Amend, 30 F.3d 1199, 1202 (9th Cir. 1994). 6 The proof of service attached to Plaintiff’s opposition reflects that he gave it to prison 7 staff for mailing on September 9, 2015. (Doc. 23, p. 14.) Thus, even though it was not received 8 and filed on the docket for another sixteen days, it is deemed filed as of September 9, 2015, and 9 so is timely. The September 25, 2015 Findings and Recommendations issued without having 10 11 considered Plaintiff’s opposition, nor any reply thereto. Accordingly, it is HEREBY ORDERED, that: 12 (1) the Findings and Recommendation that issued on September 25, 2015 (Doc. 22) is 13 WITHDRAWN; and 14 (2) within seven days of the date of service of this order, Defendant may file a reply to Plaintiff’s opposition if he so desires. 15 16 17 18 IT IS SO ORDERED. Dated: November 10, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2
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