Spence v. Beard, et al.

Filing 122

ORDER signed by Magistrate Judge Kendall J. Newman on 1/5/2021 DENYING without prejudice 121 Request to Deny Plaintiff's Motion as Premature or Moot; PARTIALLY GRANTING 121 Motion for Extension of Time; and GRANTING Defendants 14 days in which to file one response that complies with 120 Order. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GERALD SPENCE,

Case No. 2:16-cv-01828 KJN

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Plaintiff, [PROPOSED] ORDER
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v.
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G. KAUR, ET AL.

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C.

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§ 1983. In their preliminary response, defendants argue that plaintiff’s motion should be denied

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as premature or moot in light of plaintiff’s transfer to High Desert State Prison. Plaintiff was

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housed at North Kern State Prison (“NKSP”) at the time he claims he submitted a CDC 1074

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form to Captain Chanelo at NKSP administration. Inasmuch as prisoners are often transferred,

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requiring plaintiff to renew his request every time he is transferred would render his

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circumstances “capable of repetition, yet evading review,” such that this court will not

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prematurely deny plaintiff’s motion, particularly before it is fully briefed.1 Defendants’ request is

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denied.

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See Preiser v. Newkirk, 422 U.S. 395, 402 (1975); Feldman v. Bomar, 518 F.3d 637,
642 (9th Cir. 2008) (“The basic question in determining mootness is whether there is a present
controversy as to which effective relief can be granted.”).

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In the alternative, the court finds good cause to grant defendants’ request for a fourteen-day

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extension of time to respond to the court’s December 18, 2020 order (ECF No. 120). However,

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defendants are granted an extension of time to file one comprehensive response, not simply a

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supplemental response, so that there is one complete response to the motion to correspond with

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witnesses, and plaintiff is then able to file one reply to the response. Local Rule 230(l).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ request to deny plaintiff’s motion as premature or moot (ECF No. 121) is

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denied without prejudice.
2. Defendants’ motion for extension of time (ECF No. 121) is partially granted.

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3. Defendants are granted fourteen days in which to file one response that complies with

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this court’s December 18, 2020 order. (ECF No. 120.) Plaintiff’s reply shall be filed fourteen

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days after receipt of defendants’ response.

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Dated: January 5, 2021

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/spen1828.ext