Steward v. Lynch et al

Filing 39

ORDER signed by Magistrate Judge Kendall J. Newman on 05/15/2020 DENYING 33 and 34 Motion for Preliminary Injunction. Plaintiff is GRANTED up to and including 7/23/2020, in which to file a Second Amended Complaint. (Tupolo, A)

Case 2:18-cv-01227-KJM-KJN Document 39 Filed 05/15/20 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNY STEWARD,

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No. 2: 18-cv-1227 KJM KJN P

Plaintiff,
v.

ORDER

LYNCH, et al.,
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. Pending before the court are plaintiff’s motions seeking return of his legal

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materials. (ECF Nos. 33 & 34.) On May 1, 2020, pursuant to the court’s briefing order, the

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Office of the Attorney General filed a response by special appearance explaining why plaintiff

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was temporarily deprived of his property, but stating that plaintiff received his property on April

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28, 2020. (ECF No. 37 at 2.) Counsel provided a copy of the receipt reflecting plaintiff received

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six boxes of property on April 28, 2020. (ECF No. 37 at 5.)

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On May 4, 2020, plaintiff’s request for extension of time addressed to the Court of

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Appeals for the Ninth Circuit was opened as a new habeas case. Howard v. Peiffer, No. 2:20-cv-

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909 AC (E.D. Cal.). Plaintiff’s request was prepared on April 28, 2020, and sought an extension

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of time to file a document in the Ninth Circuit, and was then handed to prison staff for mailing on

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April 30, 2020. It is unclear why plaintiff mailed the request to this court, rather than the Ninth
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Case 2:18-cv-01227-KJM-KJN Document 39 Filed 05/15/20 Page 2 of 2
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Circuit, but on May 11, 2020, the request was forwarded to the Ninth Circuit. Id. A copy of the

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request was also docketed in this case because plaintiff noted his pending motions regarding his

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missing property filed in this action. (ECF No. 38 at 3.) The reference to the pending motions

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appears to be in the context of plaintiff explaining why he needs additional time to meet the

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Circuit’s deadline.

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The record reflects that plaintiff signed for his legal materials on April 28, 2020, and

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plaintiff has not filed a reply to the contrary. Good cause appearing, plaintiff’s motions are

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denied without prejudice as moot. But in light of the delay in the receipt of plaintiff’s property,

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he is granted an extension of time in which to file a second amended complaint.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motions (ECF Nos. 33, 34) are denied without prejudice; and

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2. Plaintiff is granted up to and including July 23, 2020, in which to file a second

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amended complaint that complies with the March 23, 2020 order (ECF No. 31).

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Dated: May 15, 2020

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/stew1227.prop

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