Turner v. Douglas et al

Filing 71

ORDER signed by Magistrate Judge Kendall J. Newman on 8/25/11 ORDERING that defendants are GRANTED 21 days from the date of this order to file a supplemental summary judgment motion. Plaintiff's summary judgment motion filed 7/18/11 is deemed timely; and defendants are GRANTED 21 days from the date of this order to file an opposition to this motion. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY TURNER,

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Plaintiff,

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vs.
WILLIAM G. DOUGLAS, et al.,
Defendants.

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No. 2: 09-cv-3445 GEB KJN P

ORDER
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Plaintiff is a state prisoner proceeding without counsel with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court are cross-motions for summary

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judgment. For the following reasons, defendants are granted twenty-one days to file a

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supplemental summary judgment motion and plaintiff’s summary judgment motion filed July 18,

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2011, is deemed timely.

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This action is proceeding on the amended complaint filed July 7, 2010, as to

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defendants Jencks, Douglas and Valentine. Plaintiff claims that on November 20, 2009,

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defendant Valentine refused to treat plaintiff for a staph infection. Plaintiff alleges that defendant

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Jencks refused to process his request for pain medications (oxycodone and percocet) and refused

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to change plaintiff’s bandages. Plaintiff alleges that defendant Douglas failed to provide

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adequate pain medication and also prescribed Vicodin, to which plaintiff is allegedly allergic.
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On June 13, 2011, plaintiff filed a ten page motion titled “Notice of Motion for

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‘Order’ of Declaratory Judgment Against Defendant, et al.” This motion restates plaintiff’s

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claims against defendants but includes no supporting evidence. In this motion, plaintiff also

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fails to cite to any portion of the record in support of this motion.

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On June 18, 2011, defendants filed a summary judgment motion. Regarding

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defendant Valentine, defendants argue that he was not working at the Yolo County Jail, where

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the alleged deprivations occurred, on September 20, 2009. In support of this argument,

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defendants refer to the declaration of defendant Jencks, which states that defendant Valentine

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was on vacation from September 16, 2009, to September 30, 2009.

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As discussed above, plaintiff alleges that defendant Valentine failed to treat

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plaintiff’s staph infection on November 20, 2009. (Dkt. No. 27 at 23 of 61.) Defendants’

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summary judgment motion incorrectly identifies September 20, 2009, as the date the alleged

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deprivation committed by defendant Valentine occurred. Accordingly, defendants are granted

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twenty-one days to file a supplemental summary judgment motion addressing the claim against

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defendant Valentine based on the date alleged in the amended complaint.

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Pursuant to the mailbox rule, on July 14, 2011, plaintiff filed a motion titled

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“Notice of Motion for Summary Judgment.” (Dkt. No. 68.) This motion contains some exhibits.

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Defendants have not responded to this motion.

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All pretrial motions, including summary judgment motions, were due on or before

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July 8, 2011. (See Scheduling Order, Dkt. No. 49.) Plaintiff’s motion for summary judgment

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filed July 14, 2011 is untimely. Because defendants are being granted an opportunity to file a

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supplemental summary judgment motion, in the interest of justice and judicial economy,

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plaintiff’s July 14, 2011 summary judgment motion is deemed timely. Defendants are ordered to

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file an opposition to this motion within twenty-one days.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants are granted twenty-one days from the date of this order to file a

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supplemental summary judgment motion;

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2. Plaintiff’s summary judgment motion filed July 18, 2011 is deemed timely;

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defendants are granted twenty-one days from the date of this order to file an opposition to this

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motion.

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DATED: August 25, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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