Contreraz v. Adams, et al
Filing
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ORDER VACATING Findings and Recommendations 67 ; ORDER Granting Plaintiff's Motion for Leave to File Opposition 72 Nunc Pro Tunc; ORDER Denying Defendants' Motion to Strike Plaintiff's Opposition 71 , signed by Magistrate Judge Gary S. Austin on 9/1/11. Defendants' Reply to Opposition If Any, Due In Thirty Days. (Gonzalez, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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QUETZAL CONTRERAZ,
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1:04-cv-06039-LJO-GSA-PC
Plaintiff,
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vs.
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ORDER VACATING FINDINGS AND
RECOMMENDATIONS
(Doc. 67.)
D. ADAMS, et al.,
ORDER GRANTING PLAINTIFF'S MOTION
FOR LEAVE TO FILE OPPOSITION
NUNC PRO TUNC
(Doc. 72.)
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ORDER DENYING DEFENDANTS’
MOTION TO STRIKE PLAINTIFF’S
OPPOSITION
(Doc. 71.)
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Defendants.
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DEFENDANTS' REPLY TO OPPOSITION,
IF ANY, DUE IN THIRTY DAYS
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I.
BACKGROUND
Quetzal Contreraz (“plaintiff”) is a prisoner proceeding pro se with this civil rights action
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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 30,
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2004. (Doc. 1.) This action now proceeds on the Second Amended Complaint filed on January 22,
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2009, against defendants Derral Adams, Michael Raymond, and Darrow Hetebrink, on Plaintiff's
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claims for violation his right to Free Exercise under the First Amendment, and his right to Equal
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Protection under the Fourteenth Amendment, for denying Plaintiff a religious diet, the right to wear
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facial hair, and accommodations to perform a full moon ritual, consistent with religious tenets of the
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Olin Pyramid Religion.1 (Doc. 32.)
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On July 7, 2011, Findings and Recommendations issued, recommending that this action be
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dismissed for Plaintiff’s failure to obey the Court’s order of April 27, 2011 which required him to
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respond to Defendants’ motion to dismiss.2 (Doc. 67.) On July 25, 2011, Plaintiff filed an untimely
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opposition to the motion to dismiss. (Doc. 70.) On July 28, 2011, Defendants filed a motion to
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strike Plaintiff’s opposition. (Doc. 71.) On August 1, 2011, Plaintiff filed a motion for leave to file
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an opposition to the motion to dismiss. (Doc. 72.)
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II.
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DISCUSSION
In the Findings and Recommendations, the undersigned found that Plaintiff failed to comply
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with the Court’s order of April 27, 2011, which granted Plaintiff a sixth extension of time to respond
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to Defendants’ motion to dismiss. Based on Plaintiff’s failure to comply, the Court recommended
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that this action be dismissed.
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Plaintiff has not filed objections to the Findings and Recommendations. Instead, Plaintiff has
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attempted to comply with the Court’s order of April 27, 2011 by filing an untimely opposition to
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Defendants’ motion to dismiss, and a motion for leave to file the untimely opposition. Plaintiff
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argues that the Court should allow his untimely opposition because he was unable to meet the
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Court’s prior deadline due to his lack of access to legal materials while he was detained in
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segregation at the California Substance Abuse Treatment Facility. Plaintiff asserts in a verified
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declaration that he was transferred to High Desert State Prison on June 8, 2011 and his legal
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materials were returned to him on July 7, 2011, enabling him to file the opposition on July 25, 2011.
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(Declaration of Contreraz, Doc. 72 at 4.)
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As the Court described in the Findings and Recommendations, Plaintiff has a history in this
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Defendant Michael J. Raymond waived service on March 19, 2011, but has not yet appeared in this action. (Doc.
62.)
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On May 17, 2010, defendant Adams filed a motion to dismiss for failure to exhaust. (Doc. 44.) On November 2,
2010, defendant Hetebrink joined the motion to dismiss. (Doc. 54.)
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case of failing to meet court deadlines and then afterward requesting an extension of time. This
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conduct is in violation of Rule 6 of the Federal Rules of Civil Procedure, which requires Plaintiff to
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file a request for extension of time “before the original time or its extension expires,” unless Plaintiff
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shows excusable neglect. Fed. R. Civ. P. 6(b). "Requests for Court-approved extensions brought on
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the required filing date for the pleading or other document are looked upon with disfavor.” L.R.
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144(d). Plaintiff is advised that the Court has the authority to dismiss Plaintiff’s entire action for
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failure to comply with court rules or a court order. L.R. 110; see Pagtalunan v. Galaza, 291 F.3d
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639, 642 (9th Cir. 2002).
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Plaintiff has submitted evidence that he was unable to prepare and file a timely opposition
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due to difficulties in gaining access to his legal materials, and that upon return of his legal materials,
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he promptly filed the opposition. Therefore, the Court shall grant Plaintiff's motion for leave to file
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the opposition. In light of this decision, the Court's Findings and Recommendations shall be vacated,
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and Defendants' motion to strike Plaintiff's opposition shall be denied.
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Plaintiff is cautioned that if he requires any further extensions of time in this action, he
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should file a motion for extension of time prior to the expiration of the current deadline.
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III.
CONCLUSION
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Accordingly, IT IS HEREBY ORDERED that:
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The Findings and Recommendations of July 7, 2011 are VACATED;
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Plaintiff's motion for leave to file an untimely opposition is GRANTED nunc pro tunc
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to July 25, 2011;
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3.
Defendants' motion to strike Plaintiff's opposition is DENIED; and
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Defendants are granted thirty days in which to file a reply to Plaintiff's opposition to
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the motion to dismiss.
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IT IS SO ORDERED.
Dated:
6i0kij
September 1, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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