Holmes v. Estock et al
ORDER Re: 111 Plaintiff's Ex Parte Motion for Extension of Time. The Court GRANTS Plaintiff's ex parte motion. Plaintiff, proceeding through counsel or pro se, must file a response in opposition to Defendants' motion for summary jud gment on or before April 17, 2020. If Plaintiff files a timely response, Defendants may file a reply in support of their motion on or before April 30, 2020. If Plaintiff does not retain new counsel and does not wish to proceed pro se, Plaintiff's current counsel of record must file a Motion to Withdraw as Counsel. The appropriate Notice of Substitution or Motion to Withdraw must be filed on or before April 3, 2020. Signed by Judge Michael M. Anello on 2/14/2020. (tcf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 3:16-cv-02458-MMA-BLM
ORDER RE: PLAINTIFF’S EX
PARTE MOTION FOR EXTENSION
ESTOCK, et al.,
[Doc. No. 111]
Plaintiff Charles Holmes, a California inmate, brings this civil rights action
pursuant to 42 U.S.C. § 1983 alleging violations of his Eighth Amendment right to
adequate medical care. Plaintiff, proceeding through counsel, has filed a Third Amended
Complaint (“TAC”) against Defendants. See Doc. No. 81. Defendants move for
summary judgment as to all claims. See Doc. No. 96. To date, for reasons set forth in an
order issued by the Court on January 29, 2020, see Doc. No. 110, Plaintiff has not filed a
response in opposition to Defendants’ motion for summary judgment despite being
granted multiple extensions of time in which to do so. See Doc. Nos. 100, 102, 110.
Plaintiff now moves for an additional extension of time in which to file a response
in opposition to Defendants’ motion. See Doc. No. 111. Plaintiff’s counsel has
submitted a declaration in support of the ex parte motion. See id. Plaintiff’s counsel sets
forth several grounds in his declaration regarding the failure to file a response brief, and
states that he intends to withdraw as counsel of record. As such, Plaintiff’s counsel
requests that the Court grant Plaintiff an additional sixty (60) days in which to file a
response brief, either proceeding through new counsel or pro se.
As the Court has previously explained, “a summary judgment motion must be
decided on the merits, and it ‘must be denied on no other grounds than that the movant
has failed to meet its burden of demonstrating the absence of triable issues.’” Doc. No.
110 at 2 (citing Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993)). The
Court prefers not to proceed in this matter unless absolutely necessary without a
substantive response to Defendants’ motion for summary judgment.
Accordingly, the Court GRANTS Plaintiff’s ex parte motion. Plaintiff, proceeding
through counsel or pro se, must file a response in opposition to Defendants’ motion for
summary judgment on or before April 17, 2020. If Plaintiff files a timely response,
Defendants may file a reply in support of their motion on or before April 30, 2020.
In addition, if Plaintiff retains new counsel to represent him in this action, he must
file a Notice of Substitution of Counsel as soon thereafter as practicable. If Plaintiff does
not retain new counsel and wishes to proceed pro se, Plaintiff must file a Notice
substituting himself as counsel of record. If Plaintiff does not retain new counsel and
does not wish to proceed pro se, Plaintiff’s current counsel of record must file a Motion
to Withdraw as Counsel. The appropriate Notice of Substitution or Motion to Withdraw
must be filed on or before April 3, 2020.
IT IS SO ORDERED.
DATE: February 14, 2020
HON. MICHAEL M. ANELLO
United States District Judge
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