Phillips v. Livingston et al

Filing 78

MOTION for Extension of Time to File by Charles Ray Phillips.. Motions referred to Judge B. Dwight Goains. (jw, )

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FILED IN THE UNITED STATES DISTRICT COURT OF THE WESTERN DISTRICT OF TEXAS FEB 0 PECOS DIVISION CHARLES RAY PHILLIPS Plaint i f if, 7 2012 § BY Cvi1 Action V u ffLERK No. 4: ll-CV-0005O--RAJ BRAD LIVINGSTON1, at al Defendants0 § PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION TO EXTEND TIME Plaintiffs Charles Ray Phillips asks the court to extend time to file a responee to Defendant Holly Campbell, LV.N. 'S Motion to Dismiss, as authorized by Federal Rule of Civil, Procedure 6 A. (b Introduction Plaintiff is Charles Ray P'iillips; defendant is Holly Campbell. Plai.tiff filed his Complaint pursuant to Title U.S.C. § 1983. The above-styled and numbered cause of action was referred to the United States Magistrate Judge B. Dw:iht Goaans on prll 29, 2011. Plaintiff asserted c].aams for deliberate indifference to Plaintiff's rnedjc1 needs1 intentional infliction of emotional distress and "had faith" against numercus defenc1ar.ts Plaintiff has been granted leave to proceed in forms. pauperis and has filed his Authorization and Consent fcrm Local Court Rule CV-7(f) provides motion must file a response ':o that a party opposing a the motion within (11) days of service of that notion. Ay may he construed by th Court as & lEiCk of opposition to the failure to file such a timely response motion and result in the Court granting the motion as unopposed Addi.tionally, If Piintiff fails to a motion filed by Defendant, to respond in a timely manner t'e Court 1 rray dismiss Plaintiff's case for want of prosecution. defendant's document was mai led certified oaii on January 27, 2012. Date of mailing postmark was same. Date cf mailing (generally, the postmark) + 3 days. Plaintiff received the motion on January 31, 2012. Thic' was after thr eE days aIi5 F1eCS more T'-e time to respond. Which plaintiff must. file a reponsE on or about February 10 2012 ccunt.iriq January 28, 2012 as clay one( 1) Plaintiff is a prisoner on the James A. Lynaugh Unit. The unit was placed on lockdown status for major shakedown on January 30 2012. Plaintiff has no access to the La Library during 1ockdori research and file his opposing motion response, without the use of the Law L il:rary and it 's Law Locks. The lockdown for the unit is expected to last until Saturday, February II, 2012 or longer. Plaintiff filed this motion to extend time as soon as he became aware of the need for additional time and before the to deadline. B . Argunent he Court nay grant a request to extend time for good cause. Fed. R. Civ. P. ô(b)(1)(A); see Jenkins v. Commonwealth Land TITLE Ins. Co., 95 F.3d 791, 795 (cth Cjr.1996). Plaintiff iequests an extension ot time to respond to defendant s motion because plaintiff needs to hace access to Law Library and Law Books for reasearch and time to file a response that cannot be completed otherwise before the deadline because of the unit lockdown. Plaintiff asks tne Court to extend deadline for response to oppose Defendant's Holly Campbell, LV.N. Motzon to Dismiss until February .17, 2012.. The Plairtiffs Motion for extension of tiri3 is being filed before the deadline. Plaintiff request to extend time is for gcod cause and is not intended to delay proceeding. Fed. R. Civ. P. 6(b)(l)(A). See The failure to act be the result of "excuse.ble neglect." Donald v. Cook Cty. Sherriff's Dept., 95 F.3d 548, 558 (7th Cir.1996). There is great danger to the plaintiff in allowing the granting of defendant's motion without aiiowinq plaintiff the necessary extension to respond when all relevant circumstances surrounding the reason for the request. The lenqth of the deiay would not have any impact on judicial proceedings, 0 the reaon for the delay, such as un1: iockdown and no access to Law Library is beyond concrol of the olaintiff. Th'. plaintiff tau acted in good -aith0 Pioneer mv.., 507 U.S. at :395. In Pioneer, the Supreme Court identified a non exclusive list of fatots a those statei bove to conider 'when determining excusable neglect. or these reasons, pla Lnt3 if asi the Cou t Lo extend tn time to filea opposing response to Jefendant Holly Campbell 'S, Motion to Dismiss until February 17, 2012. Respectful l' subraited, O4 PRO SE: 4 Charles Ray Phillips Lynaugh Uni.t 1098 E. Hwy. 2037 Stockton, Tx 79735 Ft. DECLRTI0N UNDFR "I PENAL'T CF RLJR declare under penalty of perjury that the foregoing is true and correct.'1 EXECUTED oN4U.oA. ei% >c Charles Ray Phillips CERTIFICATE OF SERVICE A true and correct copy of the above and foregoing was on this 2nd day of February,2012 was served by U.S. mail on the following attorney in charge for defendant, Holly Campbell: Arlene C. Matthews, at CRENSHAW,Dupree & Milam, L.L.P., P.O. Box 1499, Lubbock, Texas 79408. e4L ,41 ffl4 Charles Ray Phillips 3 j%qc'/f 4,jj' LyicL1 1 cy(q7 7? 35 //v.iy.o37 S-* /G8 F1L. \ 9T?2$32O2 L. (ICI- L7. JLAU > D D3-:ciic1 Coti tJ5. L2Z riZcT a F 7XA u,t)To 7?92z 'I/O O(ATH CEMi /ECOJ 7xA

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