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)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TIMOTHY WATTS, 10 Plaintiff, 11 v. 12 Case No. 1:13-cv-00917-AWI-SKO (PC) ORDER DISCHARGING ORDER TO SHOW CAUSE NGUYEN, et al., 13 (Doc. 55) Defendants. 14 15 Plaintiff, Timothy Watts, is a state prisoner proceeding pro se and in forma pauperis in 16 this civil rights action pursuant to 42 U.S.C. ' 1983. This action was dismissed and judgment 17 entered in Defendants’ favor on September 9, 2015, when Defendants’ motion for summary 18 judgment based on Plaintiff’s failure to exhaust available administrative remedies prior to filing 19 suit was granted. (Docs. 44, 45.) Plaintiff filed a timely appeal to the Ninth Circuit. (Doc. 46.) 20 In light of the subsequent intervening authority in Reyes v. Smith, 810 F.3d 654 (9th Cir. 2016), 21 the Ninth Circuit remanded this action for determination whether Plaintiff properly exhausted 22 administrative remedies on his deliberate indifference claim regarding medical appliances. (Doc. 23 49, pp. 2-3.) Reyes issued subsequent to the closure of this action and was neither addressed by 24 the parties in the dispositive motion, nor considered in the ruling thereon. 25 Accordingly, Defendants were given opportunity to file a motion for summary judgment 26 on exhaustion, restricted to Plaintiff’s deliberate indifference claim regarding medical appliances, 27 or a statement that, in light of Reyes, they did not intend to file a motion on exhaustion issues. 28 (Doc. 50.) If Defendants elected to file a new motion for summary judgment, Plaintiff was 1 1 directed to file an opposition within twenty-one (21) days of the date of Defendants’ service of 2 their motion and was provided notice and warning of the requirements for his opposition in 3 compliance with Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 4 F.3d 952, 960-61 (9th Cir. 1998); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Id., see 5 also Doc. 51.) Defendants filed a motion for summary judgment on exhaustion issues on December 22, 6 7 2016. (Doc. 54.) More than twenty-one (21) days lapsed without Plaintiff having filed an 8 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 9 10 not be dismissed based on his failure to prosecute the action and to obey the Court’s order. (Doc. 11 55.) Two days later, Plaintiff filed a motion requesting an extension of time to file his opposition 12 to Defendants’ motion which apparently crossed in the mail with the order to show cause. (Doc. 13 56.) In his request for an extension of time, Plaintiff explained that his copy of Defendants’ 14 motion for summary judgment was mistakenly delivered to another inmate with the same last 15 name by prison personnel. (Id.) The Court accepts this explanation which satisfies the order to 16 show cause. Accordingly, it is HEREBY ORDERED that the order to show cause, that issued on 17 18 February 1, 2017, (Doc. 55), is DISCHARGED. 19 20 21 IT IS SO ORDERED. Dated: February 7, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 Sheila K. Oberto 2 .

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?