Merriman v. Telander et al

Filing 43

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/8/2018 DISCHARGING the 38 order to show cause; DENYING as moot plaintiff's 27 , 30 , 33 motions for court order directing defendants to answer complaint; and GRANTING plaintiff's 40 motion for extension of time to and plaintiff shall have 14 days to submit his reply to defendants' opposition to his motion for preliminary injunction. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOMINIQUE MERRIMAN,

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Plaintiff,

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No. 2:16-cv-2030-JAM-EFB P

v.

ORDER

JAMES TELANDER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He has filed two motions for preliminary injunction (ECF Nos. 26 & 29), three

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motions requesting that the court order defendants to answer his complaint (ECF Nos. 27, 30, &

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33), and a motion for extension of time to file a reply to defendants’ opposition to his second

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motion for preliminary injunction (ECF No. 40). For the reasons stated hereafter, the court will

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deny plaintiff’s motions requesting the court order defendants to file answer as moot and grant his

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motion for extension of time. It will defer issuing findings and recommendations on his motions

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for preliminary injunction until plaintiff’s reply has been submitted or the extension of time for

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doing so has elapsed.

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I.

Motions for Order Directing an Answer

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On February 21, 2017, the court determined that plaintiff’s Eighth Amendment

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claims of deliberate indifference to mental health needs against defendants Kentner, Romano,

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Blain, Jerusik, Wallis, Telander, Farris, and Coffin were cognizable. ECF No. 10 at 2-3. On June

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6, 2017, defendants filed a motion to dismiss plaintiff’s complaint. ECF No. 18. That motion

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was denied on December 20, 2017 when the district judge adopted this court’s findings and

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recommendations. ECF Nos. 21 & 25. Defendants had fourteen days from that date to file their

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answer. See Fed. R. Civ. P. 12(a)(4)(A). They failed to do so and, in the interim, plaintiff (as

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noted supra) filed three motions seeking a court order compelling defendants to file their answer.

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ECF Nos. 27, 30, & 33.

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On February 23, 2018, the court entered an order directing defendants to show cause, in

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writing, why default should not be entered against them for failure to timely answer the

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complaint. ECF No. 38. On March 2, 2018, defendants filed an answer to plaintiff’s complaint

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(ECF No. 41) and a response to the foregoing show cause order (ECF No. 42). Defendants’

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counsel states that she overlooked the district judge’s order adopting this court’s finding and

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recommendations denying the motion to dismiss and, consequently, failed to calendar a date for

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filing an answer. Id. at 3 ¶ 10.

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The court will discharge its show cause order. It accepts the explanation offered by

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defendants’ counsel and concludes that there is no evidence of bad faith. And given that

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defendants filed an answer concurrently with the show cause response, the court finds it

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appropriate to deny plaintiff’s motions for order (ECF Nos. 27, 30, & 33) as moot.

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II.

Motion for Extension of Time
As noted above, on February 26, 2018 plaintiff filed a motion for extension of time to file

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a reply to defendants’ opposition to his motion for preliminary injunction. ECF No. 40. He states

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that he did not receive defendants’ opposition, which was filed with the court on February 8, 2018

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(ECF No. 36), until February 16, 2016. ECF No. 40 at 4. Now, he asks for an extension of time

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until February 20, 2018 to file his reply. Id. at 5. Given that this motion for extension of time

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was filed after that date, it is unclear whether this requested date is a typographical error. In any
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event, the court will grant plaintiff’s motion and direct him to file his reply, if any, within

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fourteen days from the date of service of this order.

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III.

Conclusion

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Accordingly, it is hereby ORDERED that:

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1. Based on defendants’ response and answer (ECF Nos. 41 & 42), the order directing

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them to show cause why default should not be entered against them (ECF No. 38) is

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DISCHARGED;

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2. Plaintiff’s Motions for Court Order Directing Defendants to Answer Complaint (ECF
Nos. 27, 30, & 33) are DENIED as MOOT; and
3. Plaintiff’s Motion for Extension of Time (ECF No. 40) is GRANTED and he shall

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have fourteen days from the date of service of this order to submit his reply to defendants’

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opposition to his motion for preliminary injunction (ECF No. 36).

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DATED: March 8, 2018.

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