Warner v. Cate et al

Filing 45

ORDER signed by Magistrate Judge Edmund F. Brennan on 09/20/11 ordering the order to show cause issued 05/17/11 is discharged. Within 21 days of the date of this order, plaintiff shall file either an opposition to the motion to compel filed 07/14/11 or a statement of non opposition. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,
Plaintiff,

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vs.
MATTHEW L. CATE, et al.,
Defendants.

ORDER
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No. CIV S-09-1568 KJM EFB P

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. In a motion for appointment of counsel denied by the court on May 17, 2011,

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plaintiff stated that he was transferred to Pleasant Valley State Prison earlier this year and that

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much of his property was left behind, including all of his “declarations,” “evidentiary

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documents,” and eyeglasses. Dckt. No. 31 at 1. On January 20, 2011, plaintiff “suffered a

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nervous breakdown, resulting in a self-inflicted laceration, which required eighteen stitches.” Id.

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Plaintiff was placed in a crisis bed at the Correctional Treatment Center and later transferred to

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the Departmental Mental Hospital, where he remains. Id. at 1-2. Plaintiff claimed that his

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access to the law library was very limited at the hospital, that he was not allowed to have an ink

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pen or glasses in his room, and that he was permitted to write only during group recreational

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programs. Id. at 2.
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Because the alleged restrictions placed on plaintiff’s ability to write and his access to his

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legal materials, eyeglasses, and the library have required a protective order limiting or lifting

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such restrictions, the court construed plaintiff’s motion as including a request for such a

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protective order and ordered defendants to inquire into the status of plaintiff’s access to his legal

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materials, eyeglasses, and the law library and any restrictions on plaintiff’s ability to write and to

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show cause why a protective order should not issue. Dckt. No. 39.

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Defendants responded to the order on June 27, 2011, and plaintiff has not contested the

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response. Dckt. No. 41. A declaration by G. Thumser, Associate Warden at the California

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Medical Facility, where plaintiff currently resides, attests that plaintiff received five boxes of

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personal property, including three boxes of paperwork, on April 5, 2011. Dckt. No. 41-2 at ¶ 3.

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Plaintiff was observed wearing eyeglasses on June 22, 2011. Id. While plaintiff’s access to the

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law library and a pen may have been restricted when he was at a higher level of care, he has been

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at a lower level of care since March 30, 2011. Id., ¶ 4. At this lower level of care, plaintiff no

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longer needs permission from a clinician to go to the law library and may access library

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materials through a paging system. Id. His ability to write is similarly no longer restricted now

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that he is at a lower level of care. Id.. ¶ 6. Based on Thumser’s declaration, it appears that, at

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least since April 5, 2011, plaintiff has had access to his legal materials, eyeglasses, and library

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materials, and has been permitted to write without restriction. Accordingly, the court will

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discharge the order to show cause.

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Defendants have additionally filed a motion to compel plaintiff’s discovery responses.

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Dckt. No. 42. According to defendants, plaintiff has not responded to their discovery requests

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and has refused to submit to a deposition. Plaintiff has filed no opposition to the motion or

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statement of no opposition.

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In cases in which one party is incarcerated and proceeding without counsel, motions

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ordinarily are submitted on the record without oral argument. Local Rule 230(l). “Opposition, if

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any, to the granting of the motion shall be served and filed with the Clerk by the responding
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party not more than eighteen (18) days, plus three (3) days for mailing or electronic service, after

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the date of service of the motion.” Id. A responding party’s failure “to file written opposition or

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to file a statement of no opposition may be deemed a waiver of any opposition to the granting of

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the motion and may result in the imposition of sanctions.” Id. Furthermore, a party’s failure to

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comply with any order or with the Local Rules “may be grounds for imposition of any and all

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sanctions authorized by statute or Rule or within the inherent power of the Court.” Local Rule

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110. The court may recommend that an action be dismissed with or without prejudice, as

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appropriate, if a party disobeys an order or the Local Rules. See Ferdik v. Bonzelet, 963 F.2d

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1258, 1252 (9th Cir. 1992) (district court did not abuse discretion in dismissing pro se plaintiff’s

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complaint for failing to obey an order to re-file an amended complaint to comply with Federal

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Rules of Civil Procedure); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for

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pro se plaintiff’s failure to comply with local rule regarding notice of change of address

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affirmed).

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Accordingly, the court will order plaintiff to file either an opposition or a statement of no

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opposition to defendants’ July 14, 2011 motion to compel. Failure to comply with this order will

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be deemed a waiver of opposition to the granting of the motion and may result in the imposition

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of sanctions, including a recommendation that this action be dismissed without prejudice for

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failure to prosecute.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The order to show cause issued May 17, 2011 is discharged; and

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2. Within 21 days of the date of this order, plaintiff shall file either an opposition to the

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motion to compel filed July 14, 2011 or a statement of no opposition.

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DATED: September 20, 2011.

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