Mitchell v. Snowden et al
ORDER signed by Magistrate Judge Dale A. Drozd on 1/18/13 ORDERING that the 10/30/12 FINDINGS AND RECOMMENDATIONS 98 are VACATED. Plaintiff is GRANTED fourteen days from his receipt of this order in which to file his opposition to the defendants' motion for summary judgment. (Mena-Sanchez, L)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MICHAEL J. MITCHELL
No. 2:08-cv-1658 JAM DAD P
SNOWDEN, et al.
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action
seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 30, 2012, the undersigned issued findings and recommendations
recommending that this action be dismissed due to plaintiff’s failure to file an opposition to the
defendants’ pending motion for summary judgment. Those findings and recommendations were
served on all parties and contained notice that any objections to the findings and
recommendations were to be filed within fourteen days.
Plaintiff has now filed objections to the court’s findings and recommendations.
Therein plaintiff represents to the court that he in fact submitted his opposition to defendants’
motion for summary judgment on October 11, 2012, to the appropriate prison official for delivery
but that it never left in the prison’s outgoing mail. Plaintiff has also filed with this court a
written acknowledgment by Correctional Officer Soriano that Soriano indeed received plaintiff’s
legal mail and placed it “in the mail bag to be mailed.” (Objections (Docket No. 100), at 7.)
With his objections plaintiff has also submitted a log showing that some of his other legal mail to
this court left the prison in the weeks before and after October 11, 2012, but that no mail
addressed by him to this court left the prison reasonably near October 11, 2012. (See
Documentation in Support of Objections (Docket No. 102), at 4-5.) The defendants have not
responded to plaintiff’s explanation set forth in his objections.
The court finds that plaintiff has made a credible showing that he attempted to file
a timely opposition to the pending motion for summary judgment on October 11, 2012.
Accordingly, the October 30, 2012 findings and recommendations recommending that this action
be dismissed will be vacated. Given the circumstances as represented by plaintiff, plaintiff
should have a copy of his opposition to the summary judgment on hand that he can forward to the
court,. Therefore, this final extension of time to file his opposition – the last of many granted
plaintiff in this case – need not be long. Plaintiff will be granted fourteen days from his receipt
of this order in which to file his opposition to the defendants’ pending motion for summary
judgment. The court will not grant another extension of time for this purpose absent yet another
showing of extraordinary circumstances.
IT IS THEREFORE ORDERED that:
1. The October 30, 2012 findings and recommendations are vacated.
2. Plaintiff is hereby granted fourteen days from his receipt of this order in which
to file his opposition to the defendants’ motion for summary judgment.
DATED: January 18, 2013.
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