Herrera v. Rouch

Filing 106

ORDER Regarding 105 Motion for Reconsideration, signed by Magistrate Judge Michael J. Seng on 02/03/15. Fourteen-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA ,

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Plaintiff,

CASE NO. 1:13-cv-00289-LJO-MJS (PC)
ORDER REGARDING MOTION FOR
RECONSIDERATION (ECF No. 105)

v.
ROUCH,
FOURTEEN (14) DAY DEADLINE

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Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 28 U.S.C. § 1983. (ECF Nos. 7 & 17.) The action

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proceeds against Defendant Rouch on Plaintiff’s Eighth Amendment inadequate medical

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care claim. (ECF No. 18.) Specifically, Plaintiff alleges that he suffers from chronic pain

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in his leg that worsens in cold weather, and that Defendant Rouch was deliberately

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indifferent to this serious medical need by refusing to provide thermal underwear. (ECF

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No. 17.)

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On August 19, 2014, Defendant filed a motion for summary judgment on the

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ground Plaintiff failed to exhaust his administrative remedies. (ECF No. 81.) The motion

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advised Plaintiff of his obligation to file an opposition within twenty-one days. (Id.) On

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August 27, 2014, Plaintiff filed a motion for the appointment of an expert to oppose

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Defendant’s summary judgment motion and a motion for appointment of counsel. (ECF

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No. 84.) He did not timely file an opposition to Defendant’s motion or seek an extension

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of time to do so.

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On December 11, 2014, the Court denied Plaintiff’s motion for the appointment of

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counsel and motion for appointment of an expert. (ECF No. 103.) The Court ordered

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Plaintiff to file an opposition to the motion for summary judgment within twenty-one days.

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(Id.) Plaintiff failed to do so. Accordingly, on January 15, 2015, the undersigned issued

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findings and a recommendation to dismiss Plaintiff’s action for failure to obey a court

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order and failure to prosecute. (ECF No. 104.)

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Before the Court is Plaintiff’s January 29, 2015 motion for reconsideration of the

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findings and recommendations. (ECF No. 105.) Plaintiff states that he attempted to

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submit a motion for extension of time on January 1, 2015 by delivering said motion to

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prison officials. He further states that he was unable to file his opposition following the

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Court’s December 11, 2014 order due to his recent and ongoing medical conditions

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(including Hepatitis A, Hepatitis B, cocci, a lung infection, headaches, dizziness, and

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pain) and three hospitalizations.

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Defendant’s motion for summary judgment has been pending since August 19,

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2014. (ECF No. 81.) Plaintiff has filed no motions to extend time to oppose the motion.

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No January 1, 2015 motion for extension of time was ever received by the Court.

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The Court does not disregard Plaintiff’s contentions that his medical conditions

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interfered with his ability to litigate this case. However, Plaintiff’s filings reflect that he has

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suffered from serious medical conditions throughout this litigation. (See, e.g., ECF Nos.

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25 (motion for preliminary injunction for treatment of chronic pain), 40 (notice of appeal

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discussing severe pain), and 86 (motion for biopsy testing due to left scrotum pain, tumor

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in scrotum, headaches, back pain).) Those medical conditions have not prevented him

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from filing the more than twenty motions he has filed since initiating this action. There is

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no reason to believe any of them would have kept him from filing a timely opposition or

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request for additional time.

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Finally, the Court notes that Defendant’s motion for summary judgment is brief,

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and relatively straightforward. It addresses only whether Plaintiff exhausted his

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administrative remedies in the twelve day interval between the incident at issue

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(February 15, 2013) and the initiation of this action (February 27, 2013). (ECF No. 82.)

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Defendant previously put Plaintiff on notice of this issue in his motion to dismiss (which,

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however, was withdrawn following Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014)).

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In opposition to that motion, Plaintiff stated that he had attempted to initiate two

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administrative appeals of this action, the first on February 20, 2014, and the other on a

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later, unspecified date. Had his appeals been filed and exhausted, it would have been a

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simple matter for Plaintiff to so advise the Court. Thus, it appears Plaintiff has not

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exhausted his administrative remedies and that granting an extension of time would

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serve no useful purpose. Nothing communicated by Plaintiff has suggested otherwise.

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Nevertheless, in order to give Plaintiff every reasonable opportunity to argue

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otherwise, the Court will take and keep Plaintiff’s motion for reconsideration under

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submission for a period of fourteen days only. During that fourteen (14) day period of

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time, Plaintiff will have this final opportunity to show cause why his time to oppose the

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motion for summary judgment should be extended. Any such showing must include at

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least a summary of the evidence and arguments he would make to show he has

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exhausted his administrative remedies if additional time to respond were granted.

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IT IS SO ORDERED.
Dated:

February 3, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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