Stevenson v. Beard et al

Filing 249

ORDER Denying 248 Defendants' Ex Parte Application to Modify Briefing Schedule in ECF 243 . Signed by Judge Todd W. Robinson on 6/21/2022. (All non-registered users served via U.S. Mail Service)(ave)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEVIE J. STEVENSON,

Case No.: 16-CV-3079 TWR (RBM)
Plaintiff,

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v.

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JEFFREY BEARD, Ph.D., et al.,

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ORDER DENYING DEFENDANTS’
EX PARTE APPLICATION TO
MODIFY BRIEFING SCHEDULE
IN ECF NO. 243

Defendants.

(ECF Nos. 243, 248)

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Presently before the Court is Defendants C. Bell, C. Walker, J. Beard, N. Telles, P.

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Couch, and R. Madden’s Ex Parte Application to Modify Briefing Schedule in ECF No.

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243 (“Ex Parte App.,” ECF No. 248), in which the Court ordered the Parties on May 10,

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2022, to show cause on or before June 24, 2022, “why summary judgment should not be

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entered on qualified immunity grounds to [Plaintiff Stevie J. Stevenson’s] sole remaining

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claim” pertaining to the opening of his legal mail outside of his presence. (See ECF No.

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243 (“OSC”) at 9–10.) This was an issue that Defendants neglected to address in their

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summary judgment briefing, (see generally ECF No. 167), and that the Court therefore

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raised sua sponte. (See OSC at 7–9.)

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Defendants now request a three-week extension of that deadline “because COVID-

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19, and other pressing responsibilities, has made it impracticable to complete the briefing
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by the date ordered.” (See Ex Parte App. at 1.) Specifically, defense counsel Lyndsay

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Crenshaw indicates that, six days after the Court’s Order to Show Cause was docketed, she

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“became an Acting Supervising Deputy Attorney General, which requires her to supervise

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four other Deputy Attorney[s] General, and comprises approximately 80% of her work

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day[,]” (id.), and that, “[o]n June 6, 2022, [her] children became ill with the COVID-19

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virus . . . [and,] on June 13, 2022, [she] herself tested positive for COVID-19.” (Id. at 2.)

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Defendants contend that “[t]he[ir] continuance has been sought in a timely manner, and is

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not anticipated to prejudice Plaintiff.” (See id. at 3.)

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The Court disagrees. The Court provided the Parties a generous 45 days to respond

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to its May 10, 2022 Order to Show Cause. Defense counsel became aware a mere six days

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later—39 days before the deadline—that her increased supervisory duties may impact her

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ability to meet future deadlines.1 Although the Court is sympathetic to the health of defense

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counsel and her children, she filed Defendants’ Ex Parte Application five days after

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contracting COVID-19. Further, while Defendants filed their Ex Parte Application one

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week before the filing deadline, they did so near the close of business on the Friday before

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a holiday weekend. For practical purposes, Defendants therefore made their request only

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three court days before the deadline. Although this would usually suffice, see Standing

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Order for Civil Cases § IV, Plaintiff is incarcerated and receives all filings and Court Orders

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only by mail. By filing the Ex Parte Application when they did, Defendants have

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essentially guaranteed that, if the Court were to extend the deadline to respond to the Order

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to Show Cause, Plaintiff will be deprived of the benefit of the extension.

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Consequently, under these circumstances, the requested extension is untimely and

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would prejudice Plaintiff, the party defending against summary judgment. The Court

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therefore DENIES Defendants’ Ex Parte Application. Both Plaintiff and Defendants

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Although co-counsel John P. Walters, II and Michelle DesJardins are list as “[i]nactive,” the docket also
reflects that yet another attorney—Tessa Rose Lessner—remains active defense counsel. The Ex Parte
Application, however, contains no mention of Ms. Lessner, much less any explanation as to why she was
unavailable to assist Ms. Crenshaw in meeting the relevant briefing deadline.

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16-CV-3079 TWR (RBM)

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SHALL RESPOND to the May 10, 2022 Order to Show Cause on or before June 24, 2022,

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as originally ordered. (See OSC at 9–10.)

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IT IS SO ORDERED.
Dated: June 21, 2022
_____________________________
Honorable Todd W. Robinson
United States District Judge

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