Filed: Aug. 22, 2017
Latest Update: Aug. 22, 2017
Summary: ORDER DENYING PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO FILE OPPOSITION TO MOTION TO DISMISS (ECF No. 31) ORDER STRIKING PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS (ECF No. 43) STANLEY A. BOONE , Magistrate Judge . Plaintiff Casey Watkins is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 1983. On May 18, 2017, Defendant Chad Greenwood filed a motion to dismiss in this action. (ECF No. 23.) On May 19, 2017, Defendant Lukious Sims
Summary: ORDER DENYING PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO FILE OPPOSITION TO MOTION TO DISMISS (ECF No. 31) ORDER STRIKING PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS (ECF No. 43) STANLEY A. BOONE , Magistrate Judge . Plaintiff Casey Watkins is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 1983. On May 18, 2017, Defendant Chad Greenwood filed a motion to dismiss in this action. (ECF No. 23.) On May 19, 2017, Defendant Lukious Sims ..
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ORDER DENYING PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO FILE OPPOSITION TO MOTION TO DISMISS (ECF No. 31)
ORDER STRIKING PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS (ECF No. 43)
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Casey Watkins is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 18, 2017, Defendant Chad Greenwood filed a motion to dismiss in this action. (ECF No. 23.) On May 19, 2017, Defendant Lukious Sims filed a notice of joinder in the motion to dismiss. (ECF No. 24.) On June 19, 2017, Defendant Greenwood's counsel filed a declaration stating that Plaintiff had not served an opposition to the motion to dismiss. (ECF No. 26.) On June 22, 2017, Plaintiff filed a notice of change of address. (ECF No. 27.) On June 26, 2017, Defendant Greenwood was ordered to serve a copy of the declaration on Plaintiff at his current address. (ECF No. 28.) On June 26, 2017, Defendant Greenwood re-served the declaration in lieu of reply at Plaintiff's new address. (ECF No. 30.)
On July 5, 2017, Plaintiff filed a motion for a thirty day extension of time until July 17, 2017, to respond to the motion to dismiss and a notice to the court. (ECF Nos. 31, 32.) Defendant Greenwood's counsel informed the Court that Defendant Greenwood intended to oppose the motion for an extension of time. On July 11, 2017, the Court ordered Defendants to file an opposition or statement of non-opposition to Plaintiff's motion for an extension of time. (ECF No. 35.)
On July 13, 2017, Defendant Greenwood filed an opposition to Plaintiff's motion for an extension of time and attached the declarations of E. Olson and S. Hom in support of the opposition. (ECF No. 36.) On July 13, 2017, Defendant Sims filed an opposition to Plaintiff's motion for an extension of time and a request for judicial notice.1 (ECF No. 37.) On July 17, 2017, the Court ordered Plaintiff to file a reply to Defendants' oppositions to Plaintiff's motion for an extension of time within twenty-one days of the date of service of the order. (ECF No. 41.) The order was served on Plaintiff on July 17, 2017.
The deadline has passed and Plaintiff has not filed a reply to Defendants' oppositions to Plaintiff's motion for an extension of time. Therefore, as Plaintiff has not refuted what is in Defendants' oppositions, the Court considers Defendants' oppositions unopposed.
The Court notes that Plaintiff's motion for an extension of time was untimely, as it was filed after the deadline for Plaintiff to file his opposition.2 Plaintiff indicates in his notice to the court that between May 27, 2017, and June 15, 2017, he was in transition between prisons and he was not allowed access to the law library, copy machine, typewriters, or his property. (ECF No. 32.) He states that he would have opposed the motion to dismiss, but he did not have access to his materials to write to the Court. (ECF No. 32.)
Defendants argue that Plaintiff has not shown good cause for an extension of time. Defendants argue that Plaintiff was transferred from California City Correctional Facility on June 14, 2017, and received at California Men's Colony on June 15, 2017. (ECF No. 30.) Defendants present evidence that Plaintiff had appointments to access the law library on June 2, 2017, June 6, 2017, and June 9, 2017, and actually attended those appointments. (ECF No. 36-2.) Defendants also present evidence that Plaintiff's property was not inventoried for transfer until June 10, 2017. (ECF No. 36-1.)
Therefore, Plaintiff had access to the law library and his property during the time that Plaintiff alleged he did not. Plaintiff had the opportunity to timely oppose the motion to dismiss or make a timely request for an extension of time, but he did not do so. The Court finds that Plaintiff has not shown good cause for an extension of time to file his opposition to Defendants' motion to dismiss and the motion for an extension of time shall be denied. Further, Plaintiff's opposition to the motion to dismiss, which was untimely filed, shall be stricken from the record.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion for an extension of time to file his opposition to the motion to dismiss (ECF No. 31) is DENIED and Plaintiff's opposition to the motion to dismiss (ECF No. 43) is STRICKEN FROM THE RECORD.
IT IS SO ORDERED.
