Quiroga v. Graves et al

Filing 66

ORDER ADDRESSING Plaintiff's Objection and Denying Plaintiff's Motion to Strike; Twenty One Day Deadline for Plaintiff to File Opposition or Statement of Non-Opposition to Defendant's Motion for Summary Judgment, signed by Magistrate Judge Gary S. Austin on 7/7/19. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MONICO J. QUIROGA III,

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Plaintiff,
v.

1:16-cv-00234-DAD-GSA-PC
ORDER ADDRESSING PLAINTIFF’S
OBJECTION AND DENYING
PLAINTIFF’S MOTION TO STRIKE
(ECF No. 65)

SERGEANT GRAVES, et al.,
Defendants.

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TWENTY-ONE DAY DEADLINE FOR
PLAINTIFF TO FILE OPPOSITION OR
STATEMENT OF NON-OPPOSITION TO
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

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Monico J. Quiroga III (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s

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Fourth Amended Complaint filed on September 6, 2018, against defendant Corporal Oscar

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Fuentes (Defendant) for violation of Plaintiff’s due process rights under the Fourteenth

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Amendment. (ECF No. 45.)

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On June 18, 2019, Defendant filed a motion for summary judgment for failure to exhaust

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administrative remedies. (ECF No. 62.) On July 1, 2019, Plaintiff filed an objection to the

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motion. (ECF No. 65.) In the objection Plaintiff argues that Defendant’s motion for summary

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judgment was untimely because it was filed after the court’s deadline for filing exhaustion of

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remedies motions. Plaintiff requests that the motion for summary judgment be stricken.
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Plaintiff is mistaken that Defendant’s motion for summary judgment was not timely filed.

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Defendant filed his motion for summary judgment on June 18, 2019. (ECF No. 62.) The court’s

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deadline for filing such a motion is July 11, 2019, which is after Defendant’s motion was filed.1

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Therefore, Defendant’s motion for summary judgment was timely filed and Plaintiff’s motion

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to strike shall be denied.

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Accordingly, it is HEREBY ORDERED that:

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1.

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1, 2019, is resolved by this order;
2.

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Plaintiff’s objection to Defendant’s motion for summary judgment, filed on July

Plaintiff’s motion to strike Defendant’s motion for summary judgment as
untimely is denied;

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Plaintiff is granted twenty-one days from the date of service of this order in which

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to file an opposition, or statement of non-opposition to the motion for summary

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judgment; and

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4.

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Plaintiff’s failure to comply with this order shall result in a recommendation that
this case be dismissed.

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IT IS SO ORDERED.
Dated:

July 7, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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In the court’s discovery and scheduling order, filed on April 11, 2019, the court set a deadline
of July 11, 2019, for the filing of exhaustion motions. (ECF No. 58.)

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