(PC) Hester v. Clendenin

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA WILLIAM HESTER, Case No. 1:20-cv-01569-NONE-BAM (PC) 12 Plaintiff, ORDER VACATING NOVEMBER 5, 2021, HEARING ON DEFENDANT’S MOTION TO 13 v. DISMISS CLENDENIN, et al., (ECF No. 18) 15 Defendants.

17 Plaintiff William Hester (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare and Institutions Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). This action proceeds on Plaintiff’s first amended complaint for substantive due process and First Amendment claims against Defendant Stephanie Clendenin, in her official capacity, with respect to the policy adopted in California Code of Regulations, Title 9, § 4350 precluding patients committed to California State Hospitals from possessing communication and internet capable devices.

26 On September 27, 2021, Defendant filed a motion to dismiss. (ECF No. 18.) Defendant set the motion for hearing before the undersigned on November 5, 2021, at 9:00 a.m. (Id.) /// 1 The parties are advised that “all motions, except motions to dismiss for lack of prosecution, filed in actions wherein one party is incarcerated and proceeding in propia persona, shall be submitted upon the record without oral argument unless otherwise ordered by the Court.

4 Such motions need not be noticed on the motion calendar.” Local Rule 230(l). Although Plaintiff is a civil detainee and not a prisoner, the parties are advised that it is the Court’s general practice to continue to apply Local Rule 230(l) and certain other local rules concerning actions in which one party is incarcerated and proceeding in propria persona, even when the pro se plaintiff is a civil detainee rather than a prisoner.

9 Accordingly, IT IS HEREBY ORDERED as follows: 10 1. The motion hearing set for November 5, 2021 before the undersigned, is VACATED; 11 and 12 2. Plaintiff’s opposition or statement of non-opposition to Defendant’s motion to dismiss 13 remains due within twenty-one (21) days after the date of service of the motion.

IT IS SO ORDERED.

16 Dated: September 28, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE