Bivins v. Ju et al

Filing 46

ORDER signed by Magistrate Judge Kendall J. Newman on 1/31/2018 DENYING as moot 44 Motion for Extension of Time; STRIKING 41 Opposition; ORDERING 45 Opposition be deemed timely-filed; DIRECTING Clerk of Court to detach exhibits to plaintiff� 39;s motions for judicial notice, ECF No. 42 at 2-40 and ECF No. 43 at 2-40, and append them as exhibits to 45 Opposition as ECF Nos. 45-1 and 45-2, respectively; STRIKING 42 and 43 Motions for Judicial Notice; and GRANTING defendants 14 days from the date of this order in which to file and serve a reply, if any. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH BIVINS,

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No. 2:16-cv-0389 MCE KJN P
Plaintiff,

v.

ORDER

DR. JU,
Defendant.

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Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis. Plaintiff’s
three motions are before the court.

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Defendants filed their motion for summary judgment on December 22, 2017. On

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December 29, 2017, plaintiff filed a three page opposition, and two motions for judicial notice.

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However, none of these three filings were signed by plaintiff. Plaintiff is advised that all

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documents submitted to the court for filing must be signed by plaintiff. Fed. R. Civ. P. 11(a).

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However, on January 22, 2018, plaintiff filed a motion for extension of time to file and

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serve an opposition to the motion for summary judgment. In the meantime, on January 25, 2018,

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plaintiff filed a second opposition to the motion for summary judgment, which included his 12

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page opposition and numerous exhibits. These exhibits included some of the pages from the

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administrative appeals appended to plaintiff’s motions for judicial notice that were not signed by

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plaintiff. (Appeal log FSP HC 15015865 (ECF No. 45 at 108-11; 152-53; 155-58), and Appeal

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log FSP 1706541 (ECF No. 45 at 131-33).) This 200 page opposition was signed by plaintiff on

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January 22, 2018.

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Plaintiff is advised that he may file one opposition to the motion for summary judgment.

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Because plaintiff corrected his failure to sign the prior opposition by signing the second

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opposition, the undersigned strikes plaintiff’s first opposition under Rule 11, and deems

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plaintiff’s second opposition as timely-filed. Thus, plaintiff’s motion for an extension of time is

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rendered moot. Moreover, because the opposition includes at least some portion of the

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administrative appeals included in his motions for judicial notice, the Clerk of the Court is

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directed to detach the exhibits appended to the motions for judicial notice and append them to

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plaintiff’s opposition as 45-1 and 45-2, respectively. Plaintiff’s motions for judicial notice are

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stricken, but the exhibits will be taken into consideration in addressing defendants’ motion for

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summary judgment. In light of this ruling, defendants are granted an extension of time in which

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to file their reply to the opposition.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time (ECF No. 44) is denied as moot;

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2. Plaintiff’s December 29, 2017 opposition (ECF No. 41) is stricken;

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3. Plaintiff’s January 25, 2018 opposition (ECF No. 45) is deemed timely-filed;

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4. The Clerk of the Court is directed to detach the exhibits to plaintiff’s motions for

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judicial notice (ECF No. 42 at 2-40 and ECF No. 43 at 2-40) and append them as exhibits to

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plaintiff’s opposition (ECF No. 45) as ECF Nos. 45-1 and 45-2, respectively;

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5. Plaintiff’s motions for judicial notice (ECF Nos. 42 & 43) are stricken; and

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6. Defendants are granted fourteen days from the date of this order in which to file and

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serve a reply, if any.

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Dated: January 31, 2018

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/bivi0389.36

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