Gray v. Virga, et al.

Filing 95

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/5/2015 DENYING as moot plaintiff's 93 motion for an extension. Defendants' deadline to re-file their motion for summary judgment is VACATED and will be re-set at a later date. Plaintiff shall notify the court that he is in possession of his legal property within 7 days of receiving it. If plaintiff has not received his legal property by 11/4/2015 he shall file a notice with the court by 11/12/2015 i n accordance with this order. IT IS RECOMMENDED that plaintiff's 90 motion for preliminary injunction or protective order be denied as moot. Referred to Judge Kimberly J. Mueller; Objections to the findings and recommendations due by 10/20/2015. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERNARDOS GRAY, JR.,

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Plaintiff,

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v.

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No. 2:12-cv-3006 KJM AC P

T. VIRGA, et al.,

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ORDER AND FINDINGS &
RECOMMENDATIONS
Defendants.

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

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42 U.S.C. § 1983. Currently before the court are plaintiff’s motion for preliminary injunction or

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protective order (ECF No. 90) and motion for extension of time (ECF No. 93).

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Due to the court’s caseload burdens, plaintiff’s motions to compel were not ruled on until

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after defendants filed their motion for summary judgment. ECF No. 73. Because defendants

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were required to supplement their discovery responses, plaintiff was given an opportunity to file a

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supplemental opposition to the summary-judgment motion. Id. at 13. Plaintiff then filed a

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motion for extension of time to submit his supplemental opposition which indicated that

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defendants had not complied with the order on the motion to compel. ECF No. 82. The deadline

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to file a supplemental opposition was vacated and plaintiff was given an opportunity to file a

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motion to enforce the discovery order. ECF No. 81. Plaintiff filed another motion to compel.

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ECF No. 82. The motion was denied and plaintiff was ordered to file his supplemental opposition
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within twenty-one days. ECF No. 85. Plaintiff then filed a motion for an unspecified extension

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of time to file his supplemental opposition (ECF No. 86) and he was granted an additional

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twenty-one days (ECF No. 87). Due to exigencies in the court’s calendar, plaintiff was advised

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that no further extensions would be granted. Id.

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Plaintiff once again moved for additional time, alleging that he was not being given access

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to his legal documents, despite having submitted requests, and that he would soon be transferred

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to another prison because of his impending release from custody. ECF No. 88. Due to plaintiff’s

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impending release, which the court presumed would result in an interruption in plaintiff’s ability

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to access his legal property, and the status of defendants’ motion for summary judgment, the

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motion for summary judgment was vacated. ECF No. 89. Within thirty days of his release from

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custody, plaintiff was to notify the court of his new address and defendants would have thirty

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days from the filing of plaintiff’s notice to re-notice, re-file, and re-serve their motion for

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summary judgment. Id.

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Plaintiff then filed a motion for emergency preliminary injunction or protective order in

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which he alleged that his legal property was still in the possession of prison officials at Pelican

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Bay State Prison and that they were intentionally withholding his property so that he could not

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comply with his court deadlines. ECF No. 90. He further indicated that he did not know if he

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would be released into the community or to the custody of the Sacramento County Jail. Id. At

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that time, the California Department of Corrections and Rehabilitation’s (CDCR) Inmate Locator

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website indicated that plaintiff was no longer in CDCR custody and defendants were required to

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notify the court whether the CDCR still had possession of plaintiff’s legal property. Id.

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Defendants advised that plaintiff’s legal property had been forwarded to him at the Sacramento

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County Jail on September 7, 2015, and that the CDCR no longer had possession of plaintiff’s

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legal property. ECF No. 92.

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On September 22, 2015, plaintiff filed a notice of change of address (ECF No. 94) and a

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motion for extension of time to file a supplemental opposition to defendants’ motion for summary

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judgment (ECF No. 93). Plaintiff alleges that he submitted a request for his legal property on

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September 16, 2015, after he received defendants’ notice and discovered that his legal property
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had been forwarded to the jail. Id. As of September 22, 2015, he had not received a response to

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his request. Id.

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Because plaintiff’s legal property is no longer in the custody of the CDCR, the court will

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recommend that his motion for preliminary injunction be denied as moot. The court will also

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deny plaintiff’s motion for extension as moot because defendants’ motion for summary judgment

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has been vacated and plaintiff is no longer required to file a supplemental opposition. However,

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because plaintiff does not currently appear to be in possession of his legal property, the

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defendants’ deadline to re-file their motion for summary judgment will be vacated and re-set once

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it has been determined that plaintiff has received his property. Plaintiff will be required to notify

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the court that he has received his property within seven days of receipt. If plaintiff has not

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received his legal property on November 4, 2015, then by November 12, 2015, he shall file a

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notice with the court advising that he has not received his legal property and outlining the steps he

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has taken to obtain it.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for extension (ECF No. 93) is denied as moot.

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2. Defendants’ deadline to re-file their motion for summary judgment is vacated and will

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be re-set at a later date.

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3. Plaintiff shall notify the court that he is in possession of his legal property within seven

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days of receiving it. If plaintiff has not received his legal property by November 4, 2015, then he

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shall file a notice with the court by November 12, 2015, advising the court that he has not

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received his legal property and outlining the steps he has taken to obtain his property.

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IT IS HEREBY RECOMMENDED that plaintiff’s motion for preliminary injunction or
protective order (ECF No. 90) be denied as moot.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 5, 2015

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