Williams v. The State of California et al

Filing 56

ORDER Requiring Plaintiff's Attorney To File An Opposition To Defendants' Motion To Dismiss And Vacating FINDINGS AND RECOMMENDATIONS For Dismissal (ECF Nos. 45 , 50 & 52 ), Response Due Within Thirty Days, signed by Magistrate Judge Michael J. Seng on 6/15/2012. (Fahrney, E)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

DONALD B. WILLIAMS,

CASE NO.

O RDE R RE Q UI RING PLAINTIFF’S
ATTORNEY TO FILE AN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS AND
VACATING
FINDINGS
AND
RECOMMENDATIONS FOR DISMISSAL

10
Plaintiff,
11
12
13

1:11-cv-182-LJO-MJS (PC)

v.
THE STATE OF CALIFORNIA, et al.,

(ECF Nos. 45, 50 & 52)
14
Defendants.
RESPONSE DUE WITHIN THIRTY DAYS

15
/
16
17
18
19
20

Plaintiff Donald B. Williams (“Plaintiff”) is a state prisoner proceeding in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
The action is proceeding against Defendants Enenmoh, Oneyeje, LeMay, Byers,
and Faria for inadequate medical care under the Eighth Amendment.

21

On May 16, 2012, Plaintiff filed a motion for new counsel. (ECF No. 52.) In his

22

motion, Plaintiff alleges that his Court-appointed attorney has failed to respond to Plaintiff’s

23

inquiries regarding his case. (Id.) The Court notes too that Plaintiff’s counsel has filed no

24

opposition to Defendants’ motion to dismiss (ECF No. 45) or objections to the Court’s

25

Findings and Recommendations (“F&R”) recommending dismissal of this action (ECF No.

26

50). The Court ordered Plaintiff’s attorney to respond to Plaintiff’s motion. (ECF No. 53.)

27

In response, Plaintiff’s attorney filed an unenlightening declaration stating that she

28

had requested to meet with Plaintiff, she is willing to continue on this case, and that “So
-1-

1

far, unfortunately, I only receive helpful responses from the Court.” (ECF No. 54.) She

2

does not address why she failed to file an opposition to Defendants’ motion to dismiss

3

(ECF No. 45) or objection to the Court’s F&R for dismissal (ECF No. 50).

4

It appears Plaintiff’s failure to respond to Defendants’ motion to dismiss and the

5

Court’s F&R is attributable to inaction by his attorney. The Court is unwilling to impose a

6

forfeiture on Plaintiff or have this case disposed of other than on the merits because of

7

failings on the part of a party’s attorney.

8

Plaintiff’s attorney has indicated a willingness to continue with this matter. It would

9

be counter-productive to replace her at this time. Accordingly the Court will extend the time

10

for Plaintiff to file opposition to the motion to dismiss. However, the Court also is unwilling

11

to allow Defendants to suffer the consequences of Plaintiff’s counsel’s inaction. Further

12

failures to respond and otherwise to advocate on behalf of her client will lead to appropriate

13

sanctions against the responsible attorney.

14

Accordingly, the Court hereby ORDERS as follows:

15

1.

Plaintiff’s motion for new counsel (ECF No. 52) is DENIED without prejudice;

16

2.

The Findings and Recommendations issued on May 4, 2012 (ECF No. 50)
are VACATED;

17
3.

18

Plaintiff’s attorney is ordered to respond to Defendants’ motion to dismiss
(ECF No. 45) within thirty days of entry of this order;

19
4.

20

The Clerk’s Office is ordered to send a copy of this order directly to Plaintiff;
and

21
5.

22

In the event that Plaintiff’s attorney fails to file a competent response to

23

Defendants’ motion to dismiss within thirty days of entry of this order, the

24

Court will impose sanctions against that attorney.

25
26

IT IS SO ORDERED.

27

Dated:
ci4d6

June 15, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

28
-2-