Lavery v. Dhillon

Filing 225

ORDER signed by Magistrate Judge Allison Claire on 6/16/2020 DENYING plaintiff's 221 "petition for review" ; DENYING plaintiff's 223 , 224 motions for the appointment of counsel; GRANTING plaintiff's 224 motion for an extension of time. Within 60 days, plaintiff shall file a response to defendant's motion for summary judgment. Absent exigent circumstances, no additional requests for extensions of time will be granted. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LAVERY,

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Plaintiff,

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No. 2:13-cv-2083 MCE AC P

v.

ORDER

B. DHILLON, et al.,

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Defendants.

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On May 1, 2020, plaintiff filed a “petition for review & consideration of federal court’s

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last order.” ECF No. 221. Since then, plaintiff has also filed a motion for an extension of time to

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file an opposition to defendant’s February 3, 2020 motion for summary judgment. See ECF No.

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224. Plaintiff has also filed two motions for the appointment of counsel. See ECF Nos. 223, 224.

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For the reasons stated below, plaintiff’s “petition for review” and motions for appointment of

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counsel will be denied, and his June 4, 2020 request for an extension of time will be granted.

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I.

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“PETITION FOR REVIEW”
Plaintiff’s “petition for review & consideration of federal court’s last order” ultimately

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seeks assistance from the court with obtaining his legal documents and medical records. See

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generally ECF No. 221. Plaintiff’s transfer to another facility in February 2020, as well as a

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myriad of other problems related to prison life – e.g., delays in receiving records requests from

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prison authorities, the lack of access to a legal library, a lost box of legal and medical documents

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– are reasons plaintiff provides in support of his request for court assistance. See id. at 2-5. In
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this motion, plaintiff also requests an extension of time to file a response to defendant’s motion

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for summary judgment, and he asks that the extension begin after he has received his documents.

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See id. at 5.

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The court will deny this motion in its entirety. This case has been on the court’s docket

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since 2013. Since its commencement, plaintiff has had the benefit of appointed pro bono counsel

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for limited purposes. See ECF Nos. 117, 172. On June 7, 2018, counsel for plaintiff at that time

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was ordered to return plaintiff’s file and all other client papers and property (see ECF No. 168),

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and it is presumed that subsequently-appointed limited purpose counsel also returned plaintiff’s

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files to him upon her termination in September 2019. The instant motion does not allege

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otherwise.

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Ultimately, as a pro se litigant, it is plaintiff’s responsibility to keep track of his case file.

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In addition, both the public and the court have an interest in disposing of cases in an expedited

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manner. See generally Fed. R. Civ. P. 1; see also In re Phenylpropanolamine (PPA) Products

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Liability Litigation, 460 F.3d 1217 (9th Cir. 2006) (stating orderly and expeditious resolution of

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disputes is of great importance to rule of law and delay in reaching merits is costly in money,

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memory, manageability, and confidence in process); Hernandez v. City of El Monte, 183 F.3d

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393, 399 (9th Cir. 1998). For these reasons, plaintiff’s request for assistance with locating his

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legal and medical records and his request to delay the filing of his opposition until those

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documents are located (see generally ECF No. 221) will be denied.

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II.

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MOTIONS FOR THE APPOINTMENT OF COUNSEL
Plaintiff’s motions for appointment of counsel (see ECF Nos. 223, 224) will also be

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denied. The circumstances cited in support of these motions are not materially different from

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those found insufficient on plaintiff’s last several such motions. See ECF Nos. 214, 215, 216 at

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2, 220. In sum, because no exceptional circumstances have been presented in support of these

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two motions, they will also be denied. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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III.

REQUEST FOR AN EXTENSION OF TIME
Plaintiff’s motion filed June 4, 2020, also requests an extension of time to file a response

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to defendant’s motion for summary judgment. ECF No. 224 at 1. In support of this request,

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plaintiff states that he has received more of his legal property, but he is only permitted to review

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two to three boxes at one time. See id. Plaintiff anticipates that prison-wide restrictions due to

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the coronavirus pandemic will also impede his ability to file his response to defendant’s motion

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for summary judgment more quickly. See id.

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In light of these facts, plaintiff shall be given a sixty-day extension of time to file his
response. Plaintiff is warned, however, that absent exigent circumstances, no additional

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extension requests will be granted. More than 120 days have already passed since defendant filed

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his motion for summary judgment, and the motion must be resolved.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s “petition for review,” ECF No. 221, is DENIED;

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2. Plaintiff’s motion for the appointment of counsel at ECF No. 223 is DENIED;

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3. Plaintiff’s motion at ECF No. 224 is DENIED insofar as it seeks appointment of

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counsel and GRANTED insofar as it seeks an extension of time;
4. Within sixty days of the date of service of this order, plaintiff shall file a response to
defendant’s motion for summary judgment.
Absent exigent circumstances, no additional requests for extensions of time will be

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granted.

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DATED: June 16, 2020

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