1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANA RASMUSSEN Case No.: 20cv411-LAB (JLB)

12 Plaintiff, ORDER DEEMING MOTION FOR 13 v. DEFAULT JUDGMENT FULLY BRIEFED 14 DONALD HICKEY, et al. 15 Defendants. 16 17 18 Default was entered against Defendant Donald Hickey, an inmate at 19 Ironwood State Prison. Plaintiff filed a motion for default judgment. (Docket no. 54.) 20 The Court on February 8 ordered Hickey to file a written response in opposition no 21 later than March 8. If he filed one as ordered, Plaintiff was permitted to file a reply 22 brief within seven calendar days of the date it was docketed. 23 On March 8, Hickey filed a response. Plaintiff has filed no reply brief. Today, 24 March 24, the Court accepted for filing a letter from Hickey dated March 17, saying 25 he had just been released from quarantine, and giving his updated address. The 26 Court accepted it for filing as a notice of change of address. This order confirms 27 that the letter is construed as a notice of change of address only, even though it 28 mentions other matters. 1 The letter refers to Hickey sending his response to a friend “to put in an 2 acceptable format.” It says the friend “responded on time, but some how the 3 attachment did not download properly.” It says he has written to the friend “to 4 advise that the download was not successful.” The letter also acknowledges 5 receiving notifications from the Court. 6 The references to formatting and downloading make no sense. In other 7 cases, where a party is represented by counsel, the attorney can file documents 8 electronically. But Hickey is proceeding pro se, and has been filing documents in 9 paper form throughout the case. In fact, the Court specifically directed him to mail 10 any documents he wished to file in the docket to the Clerk of Court, and gave him 11 the mailing address. (Docket no. 41 at 3:5–9.) He would have no reason to think 12 his written response needed to be formatted or downloaded. What Hickey 13 apparently means is that he sent his response to a friend for filing, but some 14 unspecified attachment was not filed and Hickey has asked his friend to file the 15 attachment. 16 If there was such an attachment, Hickey’s unnamed friend has not found it 17 or submitted it to the Court. Even assuming, arguendo, that the prisoner mailbox 18 rule applies here, Hickey cannot benefit from it because he did not give his 19 response to prison authorities for mailing to the Court. See Stillman v. LaMarque, 20

(9th Cir. 2003) (holding that mailbox rule did not apply, where 21 prisoner did not deliver his petition to prison officials for forwarding to the court); 22 Hong Keung Tse v. Harrington,

, at *2 n.3 (C.D. Cal., May 11, 23 2010) (citations omitted) (“[W]here the document was not delivered to prison 24 authorities for mailing, but was given to a private individual, a petitioner may not 25 avail himself of the mailbox rule.”) Furthermore, where the filing is never received 26 by the Court, the rule applies only if the prisoner diligently follows up after it is 27 apparent the Court has not received it. See Huizar v. Carey,

, 1223 28 (9th Cir. 2001). Assuming there is a lost attachment somewhere, Hickey has 1 ||known for some time that it was not filed. Furthermore, sending documents to a 2 || friend for filing — if that is wnat he did — was contrary to the Court’s directive. (See 3 || Docket no. 41 at 3:5-9.) 4 Hickey’s response makes no mention of an attachment, and does not refer 5 any facts or information he needs in order to oppose the motion for default 6 ||judgment. Instead, the response appears to be complete in itself. 7 Throughout this litigation, Hickey has maintained that he has a good defense 8 ||and has asked for opportunities to put it on. Each time the Court gave him an 9 || opportunity to prepare and put on a defense (see Docket nos. 41, 44), he failed to 10 ||do so. Nevertheless, it is clear Hickey is capable of drafting and filing briefing, and 11 enough personal knowledge of the accusations against him that he could raise 12 ||a defense if he had one. Instead, he has changed the focus of the litigation onto 13 collateral matters such as the motives of Plaintiffs mother and family. He has also 14 ||attempted to attack the validity of his own state court guilty plea and conviction. 15 || That conviction is final and he is now serving a sentence of 15 years to life plus 10 16 years. It is apparent that Hickey has put into his filing everything he has to say, 17 that he does not need any more time to oppose the motion for default 18 || judgment. 19 The Court therefore deems the motion for default judgment fully briefed, and 20 |/ will issue an order in due course. 21 22 IT IS SO ORDERED. 23 ||Dated: March 24, 2021 24 / Ue tA (Boy lV 25 Honorable Larry Alan Burns 26 United States District Judge 27 28