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, )

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.

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,41

ffl4

Charles Ray Phillips

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