Robert J. Dixon v. Yates et al

Filing 39

ORDER REQUIRING Parties to Repsond to Objections 38 , RESPONSES DUE WITHIN FOURTEEN (14) DAYS, signed by Magistrate Judge Dennis L. Beck on 8/23/11. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT JAMES DIXON,

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

Plaintiff,

ORDER REQUIRING PARTIES TO
RESPOND TO OBJECTIONS

v.
(DOC. 38)

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JAMES A. YATES, et al.,

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RESPONSES DUE WITHIN FOURTEEN (14)
DAYS

Defendants.

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/

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

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Department of Corrections and Rehabilitation (“CDCR”). This action is proceeding on

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Plaintiff’s amended complaint against Defendants F. Igbinoza and J. Diep1 for violation of the

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Eighth Amendment. On September 20, 2010, Defendant Igbinoza filed a motion to dismiss for

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Plaintiff’s failure to exhaust administrative remedies. Plaintiff filed an opposition on May 31,

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2011. On July 8, 2011, the undersigned issued a Findings and Recommendations (“F&R”),

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recommending that Defendant’s motion be granted. On July 29, 2011, Plaintiff filed his

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objections. Doc. 38.

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Plaintiff’s complaint alleges, inter alia, that Defendant Igbinosa scheduled Plaintiff for a

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prison transfer, despite Plaintiff having an upcoming, necessary surgery. Plaintiff contends that

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he had filed an inmate grievance concerning his claim against Defendant Igbinosa. Pl.’s

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Objections 1-2. This grievance was treated as an emergency appeal, and was granted in part at

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Defendant Diep has not been served or appeared in this action.
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the first level of review, cancelling Defendant Igbinosa’s proposed transfer. Id.
The Court has examined the record in this action. In Plaintiff’s opposition, Plaintiff

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attached as an exhibit a screen out of Plaintiff’s inmate grievance No. PVSP-D-08-1325, which

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allegedly concerns Plaintiff’s claims against Defendant Igbinosa. Pl.’s Opp’n, Ex. A, Doc. 36.

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Neither party, however, has produced this grievance.

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The Court cannot make a final determination regarding Defendant’s motion to dismiss

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without this grievance. Thus, the Court will require both parties to produce this grievance, if

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possible. If a party fails to produce the grievance, the party is required to submit a declaration as

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to why he was unable to do so.

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Accordingly, it is HEREBY ORDERED that:

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1.

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The parties are to respond to Plaintiff’s objections within fourteen (14) days from
the date of service of this order;

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2.

This response is to include grievance No. PVSP-D-08-1325; and

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3.

If a party is unable to timely produce this grievance, the party is required to submit

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a declaration explaining why he was unable to comply.

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IT IS SO ORDERED.

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Dated:

August 23, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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