Asberry v. Biter

Filing 37

ORDER Requiring Counsel for Defendants Lozovoy and Relevante to File Declaration Explaining Apparent Delay Within Ten (10) Days signed by Magistrate Judge Michael J. Seng on 7/19/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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Plaintiff,
v.
WARDEN BITER, et al.,

CASE NO. 1:16-cv-01741-DAD-MJS (PC)
ORDER REQUIRING COUNSEL FOR
DEFENDANTS LOZOVOY AND
RELEVANTE TO FILE DECLARATION
EXPLAINING APPARENT DELAY
Ten (10) DAY DEADLINE

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s

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Eighth Amendment claim for medical indifference against Defendants Lozovoy and
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Relevante and Eighth Amendment conditions of confinement and First Amendment
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retaliation claims against Defendants Ferris and Godfrey.
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On May 18, 2017, one day before the original deadline for responsive pleadings
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to be filed, counsel for Defendants filed a motion for a sixty day extension of time to file a
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responsive pleading to Plaintiff’s complaint because of “the potential need to retain
outside counsel for one or more Defendants . . . .” (Id.) The Court granted that request,

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requiring Defendants to file responsive pleadings by July 18, 2017. (ECF No. 27.)
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On July 14, 2017, three court days before the extended deadline for Defendants’

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responses, Defendants Ferris and Godfrey’s newly retained counsel filed a further

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motion for an additional thirty-one day extension of time to answer. (ECF No. 34.) An

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attached declaration by counsel for Defendants Ferris and Godfrey’s indicates it was not

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until July 10, 2017, eight days before the end of the 60 day extension, that his firm was

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asked to represent Defendants Ferris and Godfrey.. (Id.)

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Districts courts have the inherent power and authority to control their dockets and

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sanction unnecessary delay. The Court hereby directs counsel for Defendants Lozovoy

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and Relevante to file, within ten days of the date of this Order, a declaration under

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penalty of perjury explaining the apparent delay in retaining outside counsel for

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Defendants Ferris and Godfrey’s until the end of the extended time granted for doing so.

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The Court will consider the contents thereof in determining whether to issue an order to

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show cause why sanctions should not be imposed for such apparent delay.

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Based on the foregoing, it is HEREBY ORDERED THAT counsel for Defendants

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Lozovoy and Relevante shall, within ten days of this Order, file a declaration as above

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directed.

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IT IS SO ORDERED.
Dated:

July 19, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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