Taylor v. Wong et al

Filing 41

ORDER signed by Magistrate Judge Kendall J. Newman on 1/30/2019 DENYING plaintiff's 40 motion to compel. Defendants shall re-serve plaintiff with summary judgment motion and motion to stay within 7 days of the date of this order; defendant s shall file proof of re-service with the court. Plaintiff is granted 45 days from the date of this order to file oppositions to defendants' summary judgment motion and motion to stay; no extensions of time to file oppositions 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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ROBERT TAYLOR,

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No. 2: 17-cv-1758 MCE KJN P

Plaintiff,
v.

ORDER

WONG, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On August 3, 2018, defendants filed a summary judgment motion and a

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motion to stay. (ECF Nos. 25, 26.) Plaintiff did not file oppositions to these motions.

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Accordingly, on September 20, 2018, the undersigned ordered plaintiff to file his oppositions

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within thirty days. (ECF No. 29.) Plaintiff did not respond to the September 20, 2018 order.

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Accordingly, on November 6, 2018, the undersigned recommended that this action be dismissed.

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(ECF No. 32.)

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On December 6, 2018, plaintiff filed a motion for an extension of time to file an

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opposition to defendants’ summary judgment motion. (ECF No. 33.) Plaintiff also requested that

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he be provided with a copy of defendants’ summary judgment motion. In this pleading, plaintiff

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alleged that he could not file a timely opposition due to numerous, recent transfers, lack of access

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to his legal property and failure to receive his legal mail in a timely manner.
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On December 12, 2018, the undersigned vacated the November 6, 2018 findings and

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recommendations. (ECF No. 34.) The undersigned also directed defendants to re-serve plaintiff

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with the summary judgment motion and motion to stay. (Id.) The undersigned granted plaintiff

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forty-five days to file oppositions to these motions. (Id.)

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On December 19, 2018, defendants filed proof of re-service of the motion for summary

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judgment and motion to stay. (ECF Nos. 35, 36.) These motions were re-served on plaintiff on

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December 14, 2018 at his address of record at R.J. Donovan Correctional Facility (“RJDCF”).

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(Id.)

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Pursuant to the mailbox rule, on December 13, 2018, plaintiff filed a motion for extension

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of time to file his opposition to defendants’ motions. (ECF No. 37.) In this motion, plaintiff

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alleged that he required additional time to respond to defendants’ summary judgment motion

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because he did not have access to a copy machine. (Id.) In other words, plaintiff did not state

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that he did not have a copy of defendants’ motion. In this pleading, plaintiff also stated that he

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was transferred to California State Prison-Los Angeles. (Id.)

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On January 4, 2019, the undersigned granted plaintiff a thirty days extension of time to
file his oppositions to defendants’ motions. (ECF No. 38.)

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Pursuant to the mailbox rule, on January 11, 2019, plaintiff filed the pending motion to

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compel. (ECF No. 40.) In this pleading, plaintiff alleges that he did not receive copies of

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defendants’ motions to stay and for summary judgment, as ordered by the court on December 12,

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2018. Plaintiff alleges that defendants failed to comply with the December 12, 2018 order.

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Plaintiff also requests that defendants be ordered to pay him costs for his time spent preparing the

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motion to compel.
Plaintiff’s failure to allege that he did not possess defendants’ motions in his December

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13, 2018 motion for extension of time suggests that plaintiff found his copy of defendants’

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motions in his legal property. In the pending motion to compel, plaintiff also does not directly

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state that he does not possess defendants’ motions. Instead, plaintiff argues that defendants did

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not comply with the December 12, 2018 order.

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Despite the undersigned’s concerns regarding plaintiff’s access to defendants’ motions,

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defendants are directed to again re-serve plaintiff with these motions at his address of record at

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California State Prison-Los Angeles.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to compel (ECF No. 40) is denied;

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2. Defendants shall re-serve plaintiff with the summary judgment motion and motion to

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stay within seven days of the date of this order; defendants shall file proof of re-service with the

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court;

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3. Plaintiff is granted forty-five days from the date of this order to file oppositions to

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defendants’ summary judgment motion and motion to stay; no extensions of time to file

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oppositions will be granted.

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Dated: January 30, 2019

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