Jayne v. Bosenko et al

Filing 111

ORDER signed by Circuit Judge Marsha S. Berzon on 04/01/11 ORDERING that plf Jayne's 98 , 102 , 109 Motions for an Extension of Time to respond to dfts' Motions for Summary Judgment are GRANTED. Jayne shall respond to dfts Motions for S ummary Judgment by 05/20/11; Jayne's 84 , 95 Motions to Dismiss dfts and Stay the statute of limitations are DENIED AS MOOT; Jayne's 104 Motion to Compel Discovery of Randy Abney's Handwritten Statement is GRANTED. By 04/15/11, dfts shall either produce Abney's handwritten statement to Jayne or submit sufficient evidence to the Court demonstrating why they cannot do so. (Benson, A.)

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(PC) Jayne v. Bosenko et al Doc. 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL AARON JAYNE, Plaintiff, vs. TOM BOSENKO, et al., Defendants. ) Case No. 2:08-cv-2767-MSB ) ) ) ) ORDER ) ) ) ) ) ) ) Michael Aaron Jayne, who is confined in the Shasta County Jail in Redding, California, filed a pro se complaint under 42 U.S.C. 1983. (Dkt. # 1). Jayne alleges that Shasta County Defendants have engaged in "an active conspiracy to violate [his] civil rights and to harass and torture" him while he was housed at the Shasta County Jail as a pretrial detainee. (Dkt. #1 at 3). This order responds to several motions filed by Mr. Jayne: (1) Jayne's two motions for an extension of time to respond to Defendants' motions for summary judgment (Dkts. #98 & 102); (2) Jayne's motions to dismiss Defendants and toll the statute of limitations (Dkts. #84 & 95); (3) and Jayne's motion to compel discovery of Randy Abney's handwritten statement (Dkt. #104). I. Jayne's Motions for an Extension of Time to Respond to Defendants' Motions for Summary Judgment (Dkts. #98, 102 & 109) All Defendants in this action except Randy Abney have filed motions for summary judgment. (Dkts. #90 & 95). Jayne has filed two motions for an extension Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of time to respond to the Defendants' motions for summary judgment. (Dkts. #98, 102 & 109). In light of Jayne's pro se status, the Court will grant Jayne an extension until May 20, 2011 to respond to Defendants' motions for summary judgment. See Abassi v. I.N.S., 305 F.3d 1028, 1032 (9th Cir. 2002) ("[W]e have consistently held that procedural requirements should be more liberally construed for pro se litigants."). The Court is extremely unlikely to grant future extensions of this deadline. II. Jayne's Motions to Dismiss Defendants and Toll the Statute of Limitations (Dkts. #84 & 95) Jayne filed two motions to dismiss certain claims and stay the statute of limitations. (Dkts. #84 & 95). The first motion sought to dismiss without prejudice Defendant Randy Abney (Dkt. #84), while the second motion asked to dismiss without prejudice the claims against all Defendants. (Dkt. #95). In both motions, Jayne also requested that the Court stay the statute of limitations until Jayne is released from prison. In his subsequent filings, however, Jayne seemed to indicate that he wished to withdraw the motions to dismiss. (See Dkt. #102 at 1). Accordingly, Jayne's motions to dismiss (Dkts. #84 & 95) are denied as moot. If the Court misunderstood Jayne's intentions, Jayne may renew his motions to dismiss. Jayne should be aware, however, that the Court is very unlikely to stay the statute of limitations. Therefore, if Jayne renews his motion to dismiss one or all Defendants, he should indicate whether he would want to dismiss Defendant(s) if the Court denies his request to toll the statute of limitations. III. Jayne's Motion to Compel Discovery of Randy Abney's Handwritten Statement (Dkt. #104) On February 28, 2011, Jayne filed a motion to compel discovery of a handwritten statement by Randy Abney, which Jayne asserts is material to one of his claims. (Dkt. #104). In opposing Jayne's motion, Defendants argue that "[t]here is not, and never has been, a handwritten report such as plaintiff describes." (Dkt. #105 at 7). But Defendants have not sufficiently substantiated this assertion. Although -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jose Gonzales submitted a declaration averring that the "internal affairs file . . . does not contain and has never contained handwritten reports from Mr. Abney" (Gonzales Decl. at 2), the declaration says nothing about whether the statement is located elsewhere. Thus, the Gonzales declaration is insufficient to prove that Defendants cannot produce Randy Abney's handwritten statement. In light of the foregoing, Jayne's motion to compel (Dkt. #104) is granted, and no later than April 15, 2011, Defendants shall either produce Randy Abney's handwritten statement to Jayne or submit evidence to demonstrate that they are unable to produce any such handwritten statement. Accordingly, IT IS HEREBY ORDERED: (1) Jayne's requests for an extension of time to respond to Defendants' motions for summary judgment (Dkts. #98, 102 & 109) are granted. Jayne shall respond to Defendants' motions for summary judgment no later than May 20, 2011. The Court is extremely unlikely to grant future extensions of this deadline. (2) Jayne's motions to dismiss Defendants and stay the statute of limitations (Dkts. #84 & 95) are denied as moot. (3) Jayne's Motion to Compel Discovery of Randy Abney's Handwritten Statement (Dkt. #104) is granted. No later than April 15, 2011, Defendants shall either produce Randy Abney's handwritten statement to Jayne or submit sufficient evidence to the Court demonstrating why they cannot do so. DATED this 1st day of April, 2011. /s/ Marsha S. Berzon MARSHA S. BERZON United States Circuit Judge, sitting by designation -3-

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