Manning, et al., v. CDCR, et al.,

Filing 255

ORDER signed by Magistrate Judge Allison Claire on 05/21/15 ordering plaintiff's motion to stay the defendants' motions for summary judgment 253 is denied. Defendants' motions for summary judgment 168 , 171 are hereby vacated. D efendants shall re-file and re-serve their motions for summary judgment, without additions or amendments, within 7 days of the filing of this order. Plaintiff shall have 30 days from service to file a response to each motion. Defendants may reply within 14 days of service of the response. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHERMAN D. MANNING,

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No. 2:12-cv-2440 MCE AC P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Currently before the court is plaintiff’s motion to stay ruling on defendants’

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motions for summary judgment until he is released from prison in February 2016 (ECF No. 253)

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and what appears to be a sur-reply to the defendants’ summary judgment motions (ECF No. 254).

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Plaintiff’s motion to stay is based upon his inability to access the law library and his legal

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property (ECF No. 253 at 1-4) and his sur-reply reiterates this point (ECF No. 254 at 1). As this

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court previously stated, the constitutional right of access to the courts is only a right to bring

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petitions or complaints to the federal court and not a right to discover such claims or even to

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litigate them effectively once filed with a court. ECF No. 252 at 5-4 (citing Lewis v. Casey, 518

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U.S. 343, 354 (1996); Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995)). Moreover, despite

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plaintiff’s limited access, he has repeatedly demonstrated that he still maintains the ability to file
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multiple motions, notices, and other miscellaneous documents with the court. Plaintiff’s alleged

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inability to litigate effectively does not constitute a basis to stay or deny defendants motions for

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summary judgment, though the court will be mindful of plaintiff’s restricted access when

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considering the summary-judgment motions.

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However, while it is clear from plaintiff’s recent filings that he has access to incoming

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legal mail (ECF Nos. 245, 253, 254), he now specifically alleges that he does not currently have

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access to the defendants’ summary-judgment motions (ECF No. 253 at 4), which indicates that he

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did not have access to them while drafting his response. Given that plaintiff admittedly does not

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have access to his legal property (ECF No. 238 at 3, 5), this allegation is credible. Yet despite

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plaintiff’s current inability to access his legal property while he is in a mental health crisis bed, it

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is clear that he is permitted access to his incoming legal mail. Therefore, the court will deny

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plaintiff’s motion to stay and instead vacate the motions for summary judgment (ECF Nos. 168,

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171) and direct the defendants to re-file and re-serve their summary-judgment motions. This shall

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ensure plaintiff has the benefit of having copies of the motions while drafting his responses. In

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light of plaintiff’s limited access to his legal property, the court will consider the record before it

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in its entirety when considering plaintiff’s response to the defendants’ re-noticed motions for

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summary judgment, including any previously submitted exhibits.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to stay the defendants’ motions for summary judgment (ECF No.

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253) is denied.

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2. Defendants’ motions for summary judgment (ECF Nos. 168, 171) are hereby vacated.

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3. Defendants shall re-file and re-serve their motions for summary judgment, without

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additions or amendments, within seven days of the filing of this order.
4. Plaintiff shall have thirty days from service to file a response to each motion.

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Defendants may reply within fourteen days of service of the response.

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DATED: May 21, 2015

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