Hendon v. Reed et al

Filing 54

ORDER DENYING Plaintiff's 51 Motion to file a Opposition beyond time and ORDER DENYING AS DUPLICATIVE 53 Motion to file a Supplemental Opposition beyond time, signed by District Judge Lawrence J. O'Neill on 05/21/2012. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CARLOS HENDON,

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CASE NO. 1:05-cv-00790-LJO-SMS (PC)
Plaintiff,

ORDER DENYING PLAINTIFF’S
REQUESTS TO FILE AN OPPOSITION
“BEYOND TIME”

v.
REED, et. al.,

(Docs. 51, 53)
Defendants.
/

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Plaintiff, Carlos Hendon, a state prisoner proceeding pro se and in forma pauperis, filed
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this civil rights action seeking relief under 42 U.S.C. § 1983. This action proceeded on
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Plaintiff’s Second Amended Complaint, filed February 25, 2008, against Defendants Granillo,
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Lopez, and Brimage for violations of the Eighth Amendment. (Doc. 11.)
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On July 9, 2010, Defendants filed a motion for summary judgment on the issue of
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excessive force in violation of the Eighth Amendment. (Doc. 36.) Plaintiff’s opposition was
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filed on August 2, 2010. (Doc. 41.) On January 31, 2011, the Magistrate Judge issued findings
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and recommendations, analyzing Plaintiff’s claims under the Eighth Amendment for excessive
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use of force and recommending that summary judgment be granted based on qualified immunity.
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(Doc. 42.) No objections to the findings and recommendations were filed.
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On March 23, 2011, the District Judge issued an order vacating that findings and
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recommendations and referring the matter back to the Magistrate Judge for further proceedings.
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(Doc. 44.) On April 8, 2011, an order (“the April 8th Order”) issued directing Defendants to file
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a supplemental motion for summary judgment (“Supplemental MSJ”) analyzing the action as a

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violation of the Eighth Amendment for Plaintiff’s conditions of confinement.1 (Doc. 45.)

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Defendants filed the Supplemental MSJ on May 6, 2011.2 (Doc. 47.) Plaintiff did not filed an

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opposition, nor a statement of non-opposition to the Supplemental MSJ.

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On June 7, 2011, a findings and recommendation (“F&R”) issued recommending

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granting the Supplemental MSJ -- to which no objections were filed. (Doc. 48.) On July 25,

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2011, an order adopting the findings and recommendations issued granting the Supplemental

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MSJ and closing the case. (Doc. 49.) Judgment was entered that same date. (Doc. 50.)

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Nearly four months later, on November 23, 2011, Plaintiff filed a motion requesting leave

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to file an opposition to the Supplemental MSJ “beyond time” since he did not receive a copy of

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the April 8th Order. (Doc. 51.) This motion is untimely.

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Although Plaintiff represents that he did not receive the April 8th Order, that order did

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not set a briefing schedule, nor was its receipt a prerequisite for any opposition that Plaintiff

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might desire to file. Rather, it was receipt of the Supplemental MSJ which triggered Plaintiff’s

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responsibilities to file an opposition3; receipt of the F&R granting the Supplemental MSJ that

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triggered Plaintiff’s responsibilities to file objections if he disagreed with its content; and receipt

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of the order adopting the F&R that triggered Plaintiff’s responsibilities to seek reconsideration if

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he disagreed with its content and case closure.

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However, Plaintiff makes no representation as to whether he received the Supplemental

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MSJ, the F&R granting the Supplemental MSJ, the order adopting the F&R, and/or the judgment

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entered thereon.

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Assuming that Plaintiff did not receive the April 8th Order until November, the

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intervening filings (the Supplemental MSJ, F&R to grant, order adopting the F&R, and entry of

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W hile this order was entered on the CM/ECF docket on April 11, 2011, it is referred to by the date it was
signed by Magistrate Judge Sandra M. Snyder -- April 8, 2011.
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On May 6, 2011, Defendants also filed a motion to offer an unenumerated Rule 12(b) motion beyond time.
(Doc. 46.) Plaintiff filed neither objections, nor an opposition to that motion.
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Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment by the
second informational order filed May 14, 2009. Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. 20-1.)

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judgment) provided Plaintiff with multiple opportunities in which to raise the issue of not having

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received the April 8th Order and any desire by Plaintiff to oppose the Supplemental MSJ.

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Plaintiff’s receipt, or lack thereof, of the April 8th Order was immaterial.

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Plaintiff filed another motion seeking leave to file a “supplemental” opposition again on
December 15, 2011 which is properly denied as duplicative.4 (Doc. 53.)
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s “Request to File an Opposition

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Beyond Time,” filed on November 23, 2011 (Doc. 51), is DENIED as untimely and Plaintiff’s

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“Request to File a Supplemental Opposition Beyond Time,” filed on December 15, 2011 (Doc.

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53), is DENIED as duplicative.

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IT IS SO ORDERED.

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Dated:
b9ed48

May 21, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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Plaintiff’s motion at Doc. 53 is almost a verbatim duplicate of that in Doc. 51.

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