Bowell v. California Department of Corrections et al

Filing 31

ORDER signed by Magistrate Judge Kendall J. Newman on 02/20/19 DENYING 27 plaintiff's motion and GRANTING 29 Motion for Extension. Defendants are relieved of their obligation to respond to plaintiff's amended complaint until further order of court. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES BOWELL,

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No. 2:17-cv-0981 KJM KJN P

Plaintiff,

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v.

ORDER

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KATHLEEN ALLISON, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. Two motions are before the

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court.

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Motion for Equitable Tolling

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On February 4, 2019, plaintiff filed a motion styled, “Motion to Grant Equitable Tolling,”

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arguing that his second claim may require equitable tolling. (ECF No. 27.) Plaintiff is advised

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that his motion is improper and his argument is premature. The court will not apply equitable

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tolling based on a stand-alone motion by plaintiff. Rather, equitable tolling is more properly

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invoked in an opposition to a dispositive motion. Defendants have not filed a responsive pleading

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or a dispositive motion requiring plaintiff to invoke equitable tolling. Thus, plaintiff’s motion is

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denied without prejudice to including such request in an opposition to a dispositive motion.

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Motion for Extension

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On February 12, 2019, defendants filed a motion for an extension of time to respond to

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plaintiff’s amended complaint until the court addresses defendants’ motion to revoke plaintiff’s in

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forma pauperis status. Good cause supports defendants’ request in light of the pendency of

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defendants’ motion to revoke. Therefore, the motion for extension is granted. Defendants are

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relieved of their obligation to respond to plaintiff’s amended complaint until further order of

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court.

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Plaintiff is reminded of his obligation to respond to defendants’ motion to revoke

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plaintiff’s in forma pauperis status not more than 21 days after such motion was served on

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plaintiff. L.R. 230(l). “Failure of the responding party to file written opposition or to file a

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statement of no opposition may be deemed a waiver of any opposition to the granting of the

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motion . . . .” Id.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion (ECF No. 27) is denied without prejudice;

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2. Defendants’ motion for extension (ECF No. 29) is granted; and

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3. Defendants are relieved of their obligation to respond to plaintiff’s amended complaint

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until further order of court.

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Dated: February 20, 2019

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