Robert J. Dixon v. Yates et al

Filing 34

ORDER Regarding Filings by Parties 24 27 ; ORDER Striking Plaintiff's Opposition as Unsigned 27 , signed by Magistrate Judge Dennis L. Beck on 5/3/11. Response due within 30 days. (Verduzco, M)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6
EASTERN DISTRICT OF CALIFORNIA
7
8 ROBERT JAMES DIXON,

CASE NO. 1:09-CV-00657-AWI-DLB PC

9

ORDER REGARDING FILINGS BY
PARTIES

10

Plaintiff,
v.

(DOCS. 24, 27)
11 JAMES A. YATES, et al.,
12

ORDER STRIKING PLAINTIFF’S
OPPOSITION AS UNSIGNED (DOC. 27)

Defendants.

13

/

RESPONSE DUE WITHIN 30 DAYS

14
15

Plaintiff Robert James Dixon (“Plaintiff”) is a prisoner in the custody of the California

16 Department of Corrections and Rehabilitation (“CDCR”). This action is proceeding on
17 Plaintiff’s amended complaint against Defendants F. Igbinoza and J. Diep1 for violation of the
18 Eighth Amendment. Pending before the Court is Defendant Igbinoza’s motion to dismiss, filed
19 September 20, 2010, for Plaintiff’s failure to exhaust administrative remedies. Def.’s Mot.
20 Dismiss, Doc. 24. On November 5, 2010, Plaintiff filed his opposition to Defendant’s motion.
21 Pl.’s Opp’n, Doc. 27. Defendant filed a reply on November 29, 2010. Doc. 29.
22

The Court notes deficiencies in both parties’ filings. Regarding Defendant Igbinosa’s

23 motion, Defendant submits Exhibit A, which purports to be a copy of Plaintiff’s inmate
24 grievance. Defendant’s counsel submits a declaration from counsel attempting to authenticate
25 this document. Pursuant to Federal Rule of Evidence 901, authentication can be accomplished
26 by testimony of a witness with knowledge. However, Defendant’s counsel does not demonstrate
27
28

1

Defendant Diep has not been served or appeared in this action.

1

1 what knowledge Defendant’s counsel has to testify that the exhibit is what it is claimed to be.
2 Defendant’s counsel does not work at the prison and does not typically deal with inmate
3 grievances. Thus, the exhibit is not properly authenticated. The Court will provide Defendant
4 with an opportunity to authenticate. Failure to authenticate in a timely manner will result in the
5 Court striking such evidence.
6

Regarding Plaintiff’s opposition, it is unsigned. Unsigned filings cannot be considered by

7 this Court and are stricken. Fed. R. Civ. P. 11(a). Plaintiff will be provided an opportunity to
8 submit a signed opposition. Failure to submit a proper, signed opposition will result in
9 Plaintiff’s waiver of opportunity to file opposition.2
10

Based on the foregoing, it is HEREBY ORDERED that:

11

1.

Plaintiff’s opposition, filed November 5, 2010, is STRICKEN as unsigned;

12

2.

Plaintiff is granted thirty (30) days from the date of service of this order in which

13

to file a signed opposition. Failure to timely file will result in Plaintiff’s waiver of

14

opportunity to file opposition;

15

3.

16

Defendant is granted ten (10) days after Plaintiff timely serves his opposition in
which to file his reply; and

17

4.

Defendant is granted thirty (30) days from the date of service of this order in

18

which to file documents to properly authenticate Exhibit A to Defendant’s motion

19

to dismiss. Failure to timely file will result in Defendant’s waiver of opportunity

20

to authenticate.

21

IT IS SO ORDERED.

22

Dated:
3b142a

May 3, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27
2

28

Plaintiff suggests that he exhausted administrative remedies via an inmate grievance. Doc. 27. However,
Plaintiff does not provide a complete copy of the grievance. Defendant also does not produce this grievance.

2