(PC) Arzaga v. Lovett

Filing 47

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/13/15 ORDERING that plaintiff's "motion for trial... in response and [with] respect to the opposition," (ECF No. #46 ) is construed as an opposition to defendant's motion to dismiss and so construed, is deemed timely filed; plaintiff's requests for extensions of time (ECF Nos. #41 , #45 ) are denied as moot; and the Clerk shall terminate docket number #46 and amend the docket text to reflect that the filing is plaintiffs opposition to the motion to dismiss. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL JESUS ARZAGA,

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No. 2:11-cv-3303-JAM-EFB P

Plaintiff,
v.

ORDER

CRAIG LOVETT,
Defendant.

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

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U.S.C. § 1983. On November 18, 2014, defendant filed a motion to dismiss for failure to state a

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claim. See Fed. R. Civ. P. 12(b)(6). On January 9, 2015, plaintiff requested an extension of time

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to respond to the motion. ECF No. 41. The court deferred ruling on that request, and instead,

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ordered defense counsel to coordinate with counsel for the California Department of Corrections

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and Rehabilitation to determine plaintiff’s housing status, including: (1) where plaintiff is

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currently housed; (2) if plaintiff is not currently housed at his normal institution of incarceration,

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when plaintiff is expected to be returned to that institution; and (3) whether plaintiff currently has

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access to pens, paper, his legal materials, and a law library. ECF No. 43. In response, defense

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counsel submitted a declaration stating that plaintiff is confined to the California Health Care

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Facility in Stockton for an unknown duration, and that he has access to pens, paper, and a law

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library, but that he likely does not have access to his own legal materials. ECF No. 44.
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Thereafter, plaintiff filed another request for an extension of time to oppose the motion to

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dismiss, explaining that he still does not have access to his legal materials. ECF No. 45.

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However, plaintiff then filed another motion, styled “motion for trial . . . in response and [with]

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respect to the opposition,” which includes a request for trial and a response to the pending motion

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to dismiss. ECF No. 46. Thus, it appears that plaintiff was provided access to a copy of

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defendant’s motion to dismiss, and was able to prepare and file a response thereto.

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Accordingly, it is hereby ORDERED that (1) plaintiff’s “motion for trial . . . in response

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and [with] respect to the opposition,” (ECF No. 46) is construed as an opposition to defendant’s

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motion to dismiss and so construed, is deemed timely filed; (2) plaintiff’s requests for extensions

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of time (ECF Nos. 41, 45) are denied as moot; and (3) the Clerk shall terminate docket number 46

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and amend the docket text to reflect that the filing is plaintiff’s opposition to the motion to

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dismiss.

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DATED: April 13, 2015.

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