Smith v. Green et al

Filing 30

ORDER Vacating 27 Findings and Recommendations, Regarding Dismissal of Action for Failure to Prosecute and Failure to Obey a Court Order; ORDER Requiring Plaintiff to Respond to Defendants' Motion for Summary Judgment, signed by Magistrate Judge Barbara A. McAuliffe on 8/27/16. 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLIFFORD SMITH,

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Plaintiff,

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v.

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GREEN, et al.,

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Defendants.

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1:13-cv-00880-DAD-BAM (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS, (ECF No. 27),
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO PROSECUTE AND
FAILURE TO OBEY A COURT ORDER
ORDER REQUIRING PLAINTIFF TO
RESPOND TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (ECF No. 24)
THIRTY (30) DAY DEADLINE

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Plaintiff Clifford Smith (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed his complaint in this action

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on June 12, 2013. This action currently proceeds on Plaintiff’s first amended complaint against

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Defendants Green, Wilson and Rohrdanz for deliberate indifference to serious medical needs in

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violation of the Eighth Amendment.

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I.

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Relevant Procedural History
On December 28, 2015, Defendants filed a motion for summary judgment. Fed. R. Civ.

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P. 56. (ECF No. 24.) Plaintiff did not respond to the motion, so on February 26, 2016, the Court

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ordered Plaintiff to file a response within thirty (30) days of service of that order. (ECF No. 26.)

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Plaintiff again failed to file any response and did not otherwise communicate with the Court. As
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a result, on April 7, 2016, the Court issued findings and recommendations recommending

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dismissal of this action for failure to prosecute and failure to obey a court order. (ECF No. 27.)

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On April 20, 2016, Plaintiff filed objections to the findings and recommendations,

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explaining that from October 25, 2015 through January 14, 2016, he was in administrative

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segregation pending adjudication of allegations that he committed a serious rules violation. (ECF

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No. 28.) Plaintiff explains that he was served with Defendants’ motion for summary judgment,

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but while in administrative segregation, he had no access to legal materials, writing implements,

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envelopes, postage, or the law library. Now that Plaintiff has been found not guilty of the

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disciplinary charge and has been returned to the general population, he believes he can submit a

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response to Defendant’s motion for summary judgment within thirty (30) days.
Defendants responded to Plaintiff’s objections, arguing that this matter should still be

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dismissed due to Plaintiff’s failure to obey the Court’s February 26, 2016 court order, which was

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issued after Plaintiff was released from administrative segregation. (ECF No. 29.) Plaintiff does

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not discuss the Court’s February 26, 2016 court order in his objections.

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II.

Discussion
In these circumstances, the Court finds it proper to vacate its findings and

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recommendations, and grant Plaintiff’s request for a thirty (30) day extension of time to respond

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to Defendants’ motion for summary judgment. Plaintiff has sufficiently explained his inability to

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respond to Defendants’ motion for summary judgment, and is now engaging in prosecuting his

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case. Plaintiff’s submissions show he has been attempting to recover his property since his

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release from administrative segregation, and it appears his lack of compliance with the Court’s

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February 26, 2016 order was likely inadvertent. However, Plaintiff is admonished that

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compliance with the Court’s orders is essential, and his timely compliance is expected.

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Accordingly, it is HEREBY ORDERED that:

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1.

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VACATED;

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///

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The Findings and Recommendations issued on April 7, 2016 (ECF no. 27) are

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2.

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Plaintiff SHALL file an opposition or a statement of non-opposition to

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Defendants’ motion for summary judgment (ECF No. 24) within thirty (30) days of the date of

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service of this order; and
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Plaintiff is warned that the failure to comply with this order will result in

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dismissal of this action, with prejudice, for failure to prosecute and failure to obey a court

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order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 27, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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