Roberts v. California Department of Corrections et al

Filing 23

ORDER signed by Magistrate Judge Allison Claire on 12/10/2012 ORDERING that within 30 days, defendant shall file a response to plaintiff's 21 response; plaintiff may file an optional reply to defendant's response within 30 days after service of defendant's response; and all pending deadlines, as well as plaintiff's 18 motion to extend discovery, are HELD IN ABEYANCE pending disposition of this order to show cause. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL DEAN ROBERTS,
Plaintiff,

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No. 2:12-cv-0247 KJM AC P

vs.
CALIFORNIA DEPT. OF
CORRECTIONS,
Defendant.

ORDER
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Plaintiff is a state prisoner proceeding pro se who seeks relief pursuant to Title II

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of the Americans with Disabilities Act (ADA). The court previously issued a discovery and

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scheduling order, which directed that the parties complete discovery by October 5, 2012, and file

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dispositive motions by December 28, 2012. See Doc. No. 12.

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On September 19, 2012, plaintiff filed with the court a motion to extend

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discovery. In support, plaintiff alleged that after attending yard one day, plaintiff discovered that

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his case file, except for three items, was missing. See Doc. No. 14 at 1. In its order denying

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plaintiff’s motion to extend discovery, the court noted that plaintiff’s statements about his

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missing case file were not made under penalty of perjury. See Doc. No. 16 at 2. The court

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advised plaintiff that, if he filed a statement with the court stating, under penalty of perjury, that
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his entire case file was taken from his cell by prison officials, the court would look into the

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matter. Id.

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On October 16, 2012, plaintiff filed a “Statement Under Penalties of Perjury In

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Response to This Courts [sic] Order of October 1, 2012.” See Doc. No. 21. In his statement,

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plaintiff declares that “all copies and/or original documents plaintiff had accumulated, prepared,

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served, or received during the court of this case (IE: Order from this Court including the June 15,

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2012 discovery and scheduling order, letters, motions, investigative notes, retained copies of

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discovery request [request for admissions], research documents and all other personally prepared

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documents) were removed from plaintiff’s cell during plaintiff’s absence.” Id. at 1. Plaintiff

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additionally declares that his case file could only have been accessed and removed from his

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assigned cell by prison staff unlocking his prison cell door by a key possessed only by prison

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staff. Id. at 2. Plaintiff concludes that he believes that prison staff removed his papers. Id.

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Plaintiff has also moved again to extend discovery. See Doc. No. 18.

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Because plaintiff has now sworn to his allegations, the court will order defendant

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California Department of Corrections and Rehabilitation (“CDCR”) to provide a response to the

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allegations raised in plaintiff’s sworn statement. Plaintiff will be given an opportunity to

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respond. Plaintiff’s motion to extend discovery, as well as all pending deadlines, will be held in

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abeyance pending disposition of this order to show cause.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within thirty (30) days of the filing date of this order, defendant shall file a

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response to plaintiff’s October 19, 2012 response (Doc. No. 21);

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2. Plaintiff may file an optional reply to defendant’s response within thirty (30)
days after service of defendant’s response; and
3. All pending deadlines, as well as plaintiff’s motion to extend discovery (Doc.

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No. 18), are held in abeyance pending disposition of this order to show cause.

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DATED: December 10, 2012.

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`
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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