Kirby v. Denny, et al

Filing 38

ORDER by Magistrate Judge Leslie E. Kobayashi on 8/5/09 : Based on the contradiction between the Motion and the letter filed by Plaintiff on August 3, 2009, the Court hereby directs Plaintiff to file a notice by August 26, 2009 confirming whether or not Plaintiff intends to proceed with the Motion. (Kaminski, H)

MINUTES

CASE NUMBER: CASE NAME: ATTYS FOR PLA: ATTYS FOR DEFT: INTERPRETER:

2:08-CV-00357DAE-LEK(PC) Ricky Kirby vs. J. Zil, M.D.

JUDGE: DATE:

Leslie E. Kobayashi 08/05/2009

REPORTER: TIME:

COURT ACTION: EO: COURT ORDER CONSTRUING PLAINTIFF'S LETTER FILED JULY 30, 2009 AS A MOTION TO DISMISS PLAINTIFF'S CASE WITHOUT PREJUDICE, SETTING RESPONSIVE DEADLINES Before the Court is Plaintiff Ricky Kirby's ("Plaintiff") Letter dated July 24, 2009 requesting the Court to "dismiss this case with No Judgment For Either Parties [sic]" ("Letter"), filed July 30, 2009. The Court hereby construes the Letter as a motion to dismiss Plaintiff's case without prejudice and said motion is taken under advisement subject to the conditions set forth below. On February 19, 2008, Plaintiff proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983 ("Complaint"). The Complaint also included a request for an appointment of counsel. On April 11, 2008, United States Magistrate Judge Dale A. Drozd issued an order dismissing Plaintiff's Complaint with leave to amend and denying Plaintiff's request for the appointment of counsel. Plaintiff thereafter requested an extension of time to amend the Complaint and for reconsideration of the denial of appointment of counsel, which the court construed as a second request for appointment of counsel. On April 30, 2008, United States Magistrate Judge Dale A. Drozd issued an order granting Plaintiff a thirty-day extension of time to file an amended complaint but denying the second request for appointment of counsel. On May 27, 2008, Plaintiff filed his amended complaint naming Doctor Zill as the sole defendant ("Defendant"). Defendant filed his answer on August 20, 2008. On December 4, 2008, Plaintiff filed a motion renewing his request for an appointment of counsel. On February 23, 2009 and March 9, 2009, Plaintiff filed requests for extensions of time to respond to questionnaires from counsel for Defendant, and on March 17, 2009 filed various further requests and submitted his medical records. On March 24, 2009, in

response to Plaintiff's December 4, 2008, February 23, 2009, March 9, 2009 and March 17, 2009 filings, this Court issued an order denying Plaintiff's request for an appointment of counsel and granting Plaintiff's request for an extension of time to respond to Defendant's questionnaires, to the extent those responses were due 75 days from the date they were served. On May 8, 2009, this Court issued a discovery and scheduling order providing the following: the deadline for filing motions to dismiss for failure to exhaust the administrative remedies shall be July 13, 2009; the deadline for amending the pleadings shall be November 9, 2009; the deadline for the completion of all discovery, including filing motions to compel, shall be January 11, 2010; and, the deadline for filing pre-trial dispositive motions shall be March 8, 2010. Defendant filed a motion for summary judgment on June 12, 2009. Plaintiff's memorandum in opposition to the summary judgment motion was due on July 3, 2009. No opposition was filed by Plaintiff. On July 13, 2009, Defendant's counsel filed a declaration stating that Defendant would not be filing a reply memorandum because of the lack of any opposition by Plaintiff. On July 20, 2009, the Court notified the parties that Defendant's motion for summary judgment was taken under advisement and that it would issue its findings and recommendations to the district judge. On July 30, 2009, Plaintiff filed the instant Letter requesting the Court to dismiss this case with no judgment for either party. Based on the foregoing, the Court's inclination was to construe the Letter as Plaintiff's Motion to Dismiss Without Prejudice ("Motion"), and to take the Motion under advisement. However, as the Court was preparing an order with respect to its inclination, Plaintiff filed a letter on August 3, 2009, apparently retracting the Motion and requesting reconsideration of the Court's order on March 24, 2009 denying Plaintiff's request for appointment of counsel. On August 4, 2009, Defendant filed a response to the Motion indicating that he had no objection provided the requested dismissal was with prejudice. Based on the contradiction between the Motion and the letter filed by Plaintiff on August 3, 2009, the Court hereby directs Plaintiff to file a notice by August 26, 2009 confirming whether or not Plaintiff intends to proceed with the Motion. If Plaintiff confirms his intent to proceed with the Motion, or otherwise fails to provide notice by said date, then the Court will take the Motion under advisement and the following responsive deadlines shall apply: Defendant's memorandum in opposition to the Motion shall be due on September 16, 2009 and Plaintiff's reply memorandum shall be due on September 25, 2009. Thereafter, the Court will issue its findings and recommendations to the district judge. IT IS SO ORDERED. Submitted by: Warren N. Nakamura, Courtroom Manager