(PC) Felix v. Clendenin

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA SCOTT EMERSON FELIX, Case No. 1:19-cv-01784-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION TO DISMISS AS MOOT 13 v. (ECF No. 28) CLENDENIN, et al., Plaintiff’s Opposition or Statement of Non- 15 Defendants. Opposition to Motion to Dismiss Due: September 14, 2022 17 Plaintiff Scott Emerson Felix (“Plaintiff”) is a civil detainee proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare and Institution 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).

21 As Plaintiff is a civil detainee and has paid the filing fee, he is not a prisoner or proceeding in forma pauperis, and therefore the Court ordered the complaint to be served without screening by the Court. (ECF No. 13.) This action therefore proceeds on Plaintiff’s complaint, filed December 23, 2019, (ECF No. 1), against Defendants California Department of State Hospitals (“DSH”), Department of State Hospitals – Coalinga (“DSH – Coalinga”), Stephanie Clendenin, Brandon Price, Francis Hicks, and Matthew Zelt.

27 On November 29, 2021, Defendants DSH, DSH – Coalinga, Clendenin, Price, and Hicks filed a motion to dismiss. (ECF Nos. 28–30.) Following Plaintiff’s failure to file an opposition or other response, the Court issued an order for Plaintiff to show cause why this action should not be dismissed, with prejudice, for failure to prosecute. (ECF No. 37.) Plaintiff filed a response indicating that he never received a copy of the motion to dismiss and was therefore unable to file a response. (ECF No. 38.) Accordingly, on July 28, 2022, the Court ordered Defendants to re- serve a copy of the November 9, 2021 motion to dismiss to Plaintiff at his current address of record, including Plaintiff’s patient number, within seven (7) days from the date of service of that order. (ECF No. 39.) The deadline for Plaintiff to file his opposition or statement of non- opposition to the motion to dismiss was also extended. (Id.) 9 On August 2, 2022, Defendants DSH, DSH – Coalinga, Clendenin, Price, and Hicks re- filed the motion to dismiss in its entirety, with the addition of new proofs of service indicating service on Plaintiff at his current address and including Plaintiff’s patient number. (ECF No. 42.)

12 As this motion is now duplicative of the November 9, 2021 motion to dismiss, the Court finds it appropriate to deny the November 9, 2021 motion to dismiss as moot. Pursuant to the Court’s July 28, 2022 order, Plaintiff’s opposition to Defendants’ motion to dismiss remains due on or before September 14, 2022. (See ECF No. 39.)

16 Accordingly, IT IS HEREBY ORDERED as follows: 17 1. Defendants’ November 29, 2021 motion to dismiss, (ECF No. 28), is DENIED as moot; 18 2. Plaintiff’s opposition or statement of non-opposition to Defendants’ August 2, 2022 19 motion to dismiss, (ECF No. 42), remains due on or before September 14, 2022; and 20 3. Plaintiff is warned that if he fails to comply with the Court’s order, this matter will 21 be dismissed, with prejudice, for failure to prosecute and failure to comply with a 22 court order.

IT IS SO ORDERED.

25 Dated: August 3, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE