Harris v. Sexton, et al.

Filing 84

ORDER ADOPTING 58 61 Findings and Recommendations in full signed by Chief District Judge Kimberly J. Mueller 11/09/21 DENYING 57 Motion for emergency injunction; DENYING 60 Motion for TRO; GRANTING 75 Motion for new scheduling order; GRANTING 82 Motion for a new scheduling order; REFERRING case back to the assigned magistrate judge for resolution of 66 plaintiff's motions to amend the complaint and for 71 extension of time to file a reply brief, issuance of a new scheduling order, and further pretrial proceedings. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERNEST S. HARRIS,

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No. 1:18-cv-0080 KJM DB P

Plaintiff,

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v.

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SEXTON, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On December 12, 2019 and August 11, 2020, the magistrate judge filed findings and

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recommendations on separate requests for injunctive relief filed by plaintiff. The findings and

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recommendations were served on all parties and contained notice to all parties that any objections

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to the findings and recommendations were to be filed within thirty days. Plaintiff filed

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objections to both sets of findings and recommendations. In accordance with the provisions of 28

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U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case.

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Having reviewed the file, the court finds both sets of findings and recommendations to be

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supported by the record and by the proper analysis. Accordingly, both will be adopted in full.

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Additionally, on February 18, 2021, plaintiff filed a motion to amend the complaint. ECF

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No. 66. On March 31, 2021, this court issued an order staying this action pending resolution of a

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motion for rehearing en banc filed in the United States Court of Appeals for the Ninth Circuit in

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another action, Rico v. Ducart, Case No. 2:17-1402 KJM DB P. Order (March 31, 2021), ECF

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No. 70. On April 1, 2021, plaintiff filed a motion for an extension of time to file a reply brief in

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support of his motion to amend, ECF No. 71; the reply was filed April 12, 2021. ECF No. 72.

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On October 5, 2021, the court granted defendants’ motion to lift the stay and directed defendants

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to file a dispositive motion or motion for a new scheduling order within sixty days. Order (Oct. 5,

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2021), ECF No. 74. On the same day, plaintiff filed a motion for a ruling on the merits of his

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claims, ECF No. 75, to which defendants responded on October 26, 2021, ECF No. 80. On

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November 3, 2021, defendants filed a notice of suggestion of the death of defendant Sexton, ECF

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No. 81, and a motion for a new scheduling order, ECF No. 82.

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After review, the court finds plaintiff’s October 5, 2021 motion contains argument in

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support of proceeding to the merits of his claims. By their most recent motion, defendants seek

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additional time to investigate the claims and develop evidence to support their defense. ECF No.

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82 at 1. The parties agree that a new scheduling order should be issued. Accordingly, these

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motions will be granted and this matter will be referred back to the assigned magistrate judge for

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resolution of plaintiff’s motions to amend the complaint and for extension of time to file a reply

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brief, ECF Nos. 66, 71, issuance of a new scheduling order, and further pretrial proceedings

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consistent with 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed December 12, 2019, ECF No. 58, are

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adopted in full;
2. Plaintiff’s November 4, 2019 motion for emergency injunction, ECF No. 57, is
DENIED;
3. The findings and recommendations filed August 11, 2020, ECF No. 61, are adopted in
full;
4. Plaintiff’s motion for temporary restraining order, ECF No. 60, is DENIED;
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5. Plaintiff’s October 5, 2021 motion, ECF No. 75, is construed as a motion for new
scheduling order and, so construed, is GRANTED;
6. Defendants’ November 3, 2021 motion for a new scheduling order, ECF No. 82, is
GRANTED; and
7. This matter is referred back to the assigned magistrate judge for resolution of

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plaintiff’s motions to amend the complaint and for extension of time to file a reply

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brief, ECF Nos. 66, 71, issuance of a new scheduling order, and further pretrial

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proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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This order resolves ECF Nos. 57, 60, 61, 75, 82.

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DATED: November 9, 2021.

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