Watts v. Nguyen, et al.

Filing 58

ORDER Discharging Order to Show Cause 55 , signed by Magistrate Judge Sheila K. Oberto on 2/7/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY WATTS,

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Plaintiff,

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v.

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Case No. 1:13-cv-00917-AWI-SKO (PC)
ORDER DISCHARGING ORDER TO
SHOW CAUSE

NGUYEN, et al.,

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(Doc. 55)
Defendants.

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Plaintiff, Timothy Watts, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. This action was dismissed and judgment

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entered in Defendants’ favor on September 9, 2015, when Defendants’ motion for summary

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judgment based on Plaintiff’s failure to exhaust available administrative remedies prior to filing

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suit was granted. (Docs. 44, 45.) Plaintiff filed a timely appeal to the Ninth Circuit. (Doc. 46.)

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In light of the subsequent intervening authority in Reyes v. Smith, 810 F.3d 654 (9th Cir. 2016),

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the Ninth Circuit remanded this action for determination whether Plaintiff properly exhausted

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administrative remedies on his deliberate indifference claim regarding medical appliances. (Doc.

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49, pp. 2-3.) Reyes issued subsequent to the closure of this action and was neither addressed by

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the parties in the dispositive motion, nor considered in the ruling thereon.

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Accordingly, Defendants were given opportunity to file a motion for summary judgment

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on exhaustion, restricted to Plaintiff’s deliberate indifference claim regarding medical appliances,

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or a statement that, in light of Reyes, they did not intend to file a motion on exhaustion issues.

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(Doc. 50.) If Defendants elected to file a new motion for summary judgment, Plaintiff was
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directed to file an opposition within twenty-one (21) days of the date of Defendants’ service of

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their motion and was provided notice and warning of the requirements for his opposition in

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compliance with Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154

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F.3d 952, 960-61 (9th Cir. 1998); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Id., see

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also Doc. 51.)
Defendants filed a motion for summary judgment on exhaustion issues on December 22,

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2016. (Doc. 54.) More than twenty-one (21) days lapsed without Plaintiff having filed an

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opposition or a statement of non-opposition to Defendants’ motion.
On February 1, 2017, an order issued for Plaintiff to show cause why this action should

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not be dismissed based on his failure to prosecute the action and to obey the Court’s order. (Doc.

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55.) Two days later, Plaintiff filed a motion requesting an extension of time to file his opposition

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to Defendants’ motion which apparently crossed in the mail with the order to show cause. (Doc.

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56.) In his request for an extension of time, Plaintiff explained that his copy of Defendants’

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motion for summary judgment was mistakenly delivered to another inmate with the same last

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name by prison personnel. (Id.) The Court accepts this explanation which satisfies the order to

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show cause.
Accordingly, it is HEREBY ORDERED that the order to show cause, that issued on

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February 1, 2017, (Doc. 55), is DISCHARGED.

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IT IS SO ORDERED.
Dated:

February 7, 2017

/s/

UNITED STATES MAGISTRATE JUDGE

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Sheila K. Oberto

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.