Warren v. Shawnego, et al

Filing 54

ORDER Denying Plaintiff's Motion For Consideration Of Untimely Opposition, Striking Opposition, And Granting Plaintiff A Thirty-Day Extension Of Time To File Objections, signed by Magistrate Judge Sheila K. Oberto on 8/18/2011. (Objections to F&R due by 9/22/2011)(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CARMON WARREN,

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CASE NO. 1:03-cv-06336-AWI-SKO PC

Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION
FOR CONSIDERATION OF UNTIMELY
OPPOSITION, STRIKING OPPOSITION, AND
GRANTING PLAINTIFF A THIRTY-DAY
EXTENSION OF TIME TO FILE
OBJECTIONS

S. SHAWNEGO,

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Defendant.
(Doc. 52)

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/

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Plaintiff Carmon Warren, a state prisoner proceeding pro se and in forma pauperis, filed this
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civil rights action pursuant to 42 U.S.C. § 1983 on September 29, 2003. Defendant Shawnego filed
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a motion to dismiss for failure to exhaust on June 9, 2011. Plaintiff failed to file an opposition or
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any other document and on August 12, 2011, the undersigned issued findings and recommendations
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recommending the motion be granted. On August 17, 2011, Plaintiff filed an opposition along with
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a motion requesting that his untimely opposition be considered.1

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The Court already issued its findings and recommendations on the motion and it declines to
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set the findings and recommendations aside and consider an untimely opposition. At this juncture
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in the proceedings, Plaintiff’s recourse is to file objections, which will be considered by the
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Honorable Anthony W. Ishii. Plaintiff is obligated to prosecute the action he filed and his contention
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that he was waiting for the Court to tell him what to do is unpersuasive.
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Dated and served by mail on August 14, 2011.

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Plaintiff was provided with the requisite notice of the requirements for opposing a motion

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to dismiss for failure to exhaust. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). (Doc.

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37-1, Second Informational Order.) Additionally, Plaintiff was informed that all pretrial motions

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are submitted without a hearing and he was directed to Local Rule 78-230(m) for the briefing

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schedule.2 (Doc. 10, First Informational Order, ¶8.) Further instruction regarding opposing the

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motion is neither required nor may it be reasonably expected, lest the Court find itself in the

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impermissible position of representing Plaintiff in this action. See Pliler v. Ford, 542 U.S. 225, 231,

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124 S.Ct. 2441 (2004) (courts not obligated to act as counsel or paralegal for pro se litigants);

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Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir. 2007). As previously noted, Plaintiff is not

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precluded from being heard on the issue of exhaustion. However, his position must now be

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articulated in objections to the findings and recommendations rather than in an opposition to the

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motion to dismiss.

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For the reasons set forth herein, Plaintiff’s motion for consideration of his untimely

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opposition is HEREBY DENIED and the opposition is STRICKEN from the record. Although the

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findings and recommendations were only recently issued and the objection period has not expired,

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Plaintiff is GRANTED, sua sponte, an extension of thirty (30) days from the date of service of this

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order within which to file his objections to the findings and recommendations.

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IT IS SO ORDERED.

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Dated:
ie14hj

August 18, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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Now Local Rule 230(l).

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