Moore v. Gipson et al

Filing 59

ORDER reinstating briefing on 43 MOTION to COMPEL signed by Magistrate Judge Barbara A. McAuliffe on 1/3/2018. Plaintiff's Opposition due within 21-Days.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MERRICK JOSE MOORE,

Case No. 1:13-cv-01820-DAD-BAM (PC)

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Plaintiff,

ORDER REINSTATING BRIEFING ON
DEFENDANTS’ MOTION TO COMPEL

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v.
TWENTY-ONE (21) DAY DEADLINE
GIPSON, et al,
Defendants.

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Plaintiff Merrick Jose Moore (“Plaintiff”) is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On August 8, 2017, Defendants filed a motion to compel pursuant to Federal Rule of Civil

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Procedure 37(a)(3)(B). (ECF No. 43.) On October 5, 2017, the Court issued an order directing

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the parties to meet and confer regarding their discovery dispute, and to file a joint statement

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following the parties’ conference. The Court stayed further briefing on Defendants’ motion to

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compel. (ECF No. 48.)

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The parties’ Joint Statement Regarding Meet-and-Confer Conference, filed on October 11,

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2017, indicated that Plaintiff’s legal property was currently misplaced due to Plaintiff’s multiple

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prison transfers. (ECF No. 49.) Further status reports filed by the parties indicated that due to

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Plaintiff’s recent transfer to the R. J. Donovan Correctional Facility (“RJD”), Plaintiff’s property

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was to be sent via overnight mail on November 9, 2017. (ECF Nos. 51, 53.) The Court ordered
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the parties to file a joint status report addressing what efforts had been made to locate and return

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Plaintiff’s legal property, and what items, if any, were missing and necessary for Plaintiff to

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respond to Defendants’ discovery requests. (ECF No. 54.)

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Currently before the Court is Defendants’ status report, filed December 18, 2017. (ECF

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No. 56.) Defendants indicate that the litigation coordinator at RJD informed defense counsel that

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on November 30, 2017, Plaintiff refused to accept his property and became belligerent towards

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officers. Further, on December 11, 2017, defense counsel was informed by Plaintiff’s

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correctional counselor that Plaintiff refused to accept counsel’s telephone call and would submit

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his own status report to the Court regarding his legal property. Defendants seek reinstatement of

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the briefing schedule on their motion to compel and require Plaintiff to respond. (Id.)
On December 20, 2017, Plaintiff filed his own status report. (ECF No. 57.) Plaintiff

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states that following a meet and confer with defense counsel, Plaintiff’s property was transferred

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to RJD on November 9, 2017. Plaintiff alleges that when his property was issued on November

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30, 2017, an entire box of property was missing, including his legal files, citation book, federal

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procedure and practice book, and Black’s law dictionary. (Id.)

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Having considered the representations of the parties, the Court finds it appropriate to
reinstate briefing on Defendants’ motion to compel, filed on August 8, 2017.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within twenty-one (21) days from the date of service of this order, Plaintiff shall file

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an opposition or statement of non-opposition to Defendants’ motion to compel

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responses to discovery requests, (ECF No. 43). In his response, Plaintiff shall address

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whether any of his legal property remains missing, and what items, if any, are missing

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and necessary for Plaintiff to respond to Defendants’ discovery requests;

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2. Within seven (7) days from the date of filing in CM/ECF of Plaintiff’s response or

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opposition to the motion to compel, Defendants shall file a reply confirming that an

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additional inquiry has been made to determine whether Plaintiff has stored property in

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the units or facilities where he has been housed while at California Men’s Colony. If

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any property is located in storage, then Defendants also should confirm if or when that
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property was transferred to R. J. Donovan Correctional Facility (or Plaintiff’s current

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housing assignment) to be issued to Plaintiff according to policy.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 3, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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