Mwasi v. Corcoran State Prison

Filing 95

ORDER Withdrawing 87 FINDINGS AND RECOMMENDATIONS to Grant Defendants' 83 Motion For Summary Judgment and Granting 93 Motion for Extension of Time to File Opposition Nunc Pro Tunc signed by Magistrate Judge Jennifer L. Thurston on 12/07/2017. Sixty-Day Deadline. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KING MWASI,

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Case No. 1:13-cv-00695-DAD-JLT (PC)
Plaintiff,

v.
CORCORAN STATE PRISON, et al
Defendants.

ORDER WITHDRAWING FINDINGS AND
RECOMMENDATION TO GRANT
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT and GRANTING EXTENSION OF
TIME TO FILE OPPOSITION NUNC PRO TUNC
(Docs. 87, 88, 93)

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60-DAY DEADLINE
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On May 30, 2017, Defendants filed a motion for summary judgment contending that

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Plaintiff violated 42 U.S.C. § 1997e(a) because he failed to exhaust the available administrative

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remedies prior to filing this suit. (Doc. 83.) Despite lapse of more than a month beyond the

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allowed time, Plaintiff filed neither an opposition, nor a statement of opposition to Defendants’

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motion. Thus, on August 17, 2017, the Court issued Findings and Recommendations to grant

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Defendants’ motion. (Doc. 87.)

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On August 28, 2017, Plaintiff filed a motion seeking a 60-day extension of time to file an

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opposition to Defendants’ motion. (Doc. 88.) On September 11, 2017, Plaintiff filed a motion to

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appoint counsel as well as a motion to rescind the F&R or stay the action as well as a motion to

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allow him to file an opposition to Defendants’ motion. (Docs. 90, 91.) In both his motion for an

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extension of time and to rescind the F&R, Plaintiff asserted that he gave Defendants’ motion and

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exhibit A to another inmate who was going to help Plaintiff prepare an opposition. (Docs. 88,

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91.) However, the other inmates’ folder, which contained Plaintiff’s copy of the motion and

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exhibit A, was stolen. Plaintiff had attempted to gain access to his 3 boxes of legal materials to

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no avail and had difficulties with mailing correspondence out of CSP. The Court found good

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cause to vacate the F&R and granted Plaintiff a 60-day extension of time to file an opposition or

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statement of non-opposition. (Doc. 92.) When Plaintiff did not file either within the time

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allowed, the F&R was reinstated. (Doc. 94.) However, Plaintiff recently filed a motion

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requesting a 60-day extension of time because a major lockdown occurred at his facility in

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October and all inmates’ property has been confiscated and is being searched. (Doc. 93.) Though

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Plaintiff has requested his legal property, he has not yet received it back and correctional staff are

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only able to tell him that he will receive his property back after it has been searched and that “it

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may take awhile.” (Id., p. 4.) Accordingly, the Court ORDERS:

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1.

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The Findings and Recommendations to grant Defendants’ motion for summary
judgment, issued on August 17, 2017 (Doc. 87), are once again VACATED;

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Plaintiff’s motion for an extension of time to file an opposition or statement of

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non-opposition to Defendants’ motion for summary judgment, filed December 1,

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2017 (Doc. 93), is GRANTED nunc pro tunc and he shall do so within 60 days of

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the date of service of this order, failure to comply will result in reinstatement of

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the August 17, 2017 Findings and Recommendations; and

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3.

The Clerk’s Office is directed to forward copies of Defendants’ motion for

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summary judgment (Doc. 83), points and authorities (Doc. 83-1), statement of

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undisputed facts (Doc. 83-2), and the declaration of Goree (Doc. 83-4) as well as

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another copy of the Second Informational Order that issued on June 1, 2017 (Doc.

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85) to Plaintiff along with service of this order.

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Plaintiff is advised that no further extensions of time will be granted. He must oppose the

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motion or file a statement of non-opposition within 60 days or the Court will presume that

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he does not wish to be heard on the matter.

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IT IS SO ORDERED.
Dated:

December 7, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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