Ammons v. Hannula et al

Filing 53

ORDER denying as moot 48 MOTION for the Court to Accept Untimely Response; denying as moot 50 Motion for Leave to File Signed by Chief Judge Barbara B. Crabb on 4/9/2009. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - V IN C EN T L. AMMONS, ORDER Plaintiff, 0 8 - cv -6 0 8 - b b c v. D R . JOAN M. HANNULA, JEA N E. VOEKS an d DR. KENNETH ADLER, D efendan ts. - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Plain ti ff Vincent Ammons, a prisoner at the Stanley Correctional Institution in S tanley, Wisconsin, has filed a civil complaint under 42 U.S.C. § 1983 against defendants D r. Joan M. Hannula, Jean E. Voeks and Dr. Kenneth Adler for denying him adequate m ed ical care under the Eighth Amendment. On March 23, 2009, I issued an order staying d efen dan ts' motion to dismiss this case and giving plaintiff until April 24, 2009, to show cause why this case should not be dismissed under the Mack order previously issued against him . I instructed plaintiff that unless he makes the necessary showing that he was in im m inen t danger at the time he filed his complaint, I will dismiss his case. N ow plaintiff has filed two documents that appear to have been submitted before he

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received a copy of the March 23, 2009 order. First, plaintiff has filed a motion for an enlargem ent of time to file his brief in opposition to defendants' motion to dismiss. Plaintiff h ad until March 9, 2009 to file his brief in opposition, and the court received his brief on M arch 16, 2009. Plaintiff argues that he presented his brief to prison officials for mailing on March 9, and thus under the mailbox rule his opposition was filed timely. I will deny this m otio n as moot because, as I stated in the March 23, 2009 order, I considered his brief in op po sition despite the fact that it appeared to be late. S eco n d, plaintiff has filed a motion for leave to file a surreply to defendants' motion to dismiss. I will deny this motion as moot because I already have set an April 24, 2009 d ead lin e for plaintiff to show cause why the case should not be dismissed. In the March 23, 20 09 order, I concluded that it will be appropriate to revoke plaintiff's right to proceed under the imminent danger exception to Mack and 28 U.S.C. § 1915(g) if the record in dicates his allegations of imminent danger are not credible. Therefore, plaintiff should not w aste his resources challenging that decision. Instead, he should focus on responding to the ord er to show cause.

OR DER IT IS ORDERED that plaintiff's motions for an enlargement of time to file his brief in opposition to defendants' motion to dismiss (dkt. #48) and for leave to file a surreply to

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defendan ts' motion to dismiss (dkt. #50) are DENIED as moot. E n tered this 9t h day of April, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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