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Wilson v. Brown

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


July 23, 2008

ROYCE CORNELL WILSON, PLAINTIFF,
v.
CECIL BROWN AND HANK COMSTOCK, JOHN R. WHITEFLEET DEFENDANTS.

The opinion of the court was delivered by: Jeremy Fogel United States District Judge

EX PARTE APPLICATION TO MODIFY THE ORDER DATED APRIL 25, 2008; DECLARATION OF and PROPOSED ORDER

Defendants CECIL BROWN and HANK COMSTOCK hereby submit the following Ex Parte Application to Modify the Order dated April 25, 2008, setting a deadline for Defendants to file a Dispositive Motion, requesting said deadline be extended by approximately thirty days. On April 25, 2008, this Court issued an Order stating: "No later that ninety (90) days from the dates of this order, Defendants shall file a motion for summary judgment or other dispositive motion with request to the claim in the complaint found to be cognizable above."

Order, dated 4/25/08 (Docket No. 15). In accordance with procedural requirements as set forth in Jones v. Bock, 549 U.S. 199 (2007), Defendants anticipate filing a motion for summary judgment/adjudication on the grounds that Plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a). See also Bryant v. Sacramento County Jail, 2008 U.S. Dist. LEXIS 10273 (E.D. Cal. Feb. 12, 2008) (noting summary judgment is the appropriate procedural vehicle).

On July 9, 2008, Defendants CECIL BROWN and HANK COMSTOCK were served with the complaint.*fn1 (Declaration of John Whitefleet.) On or about July 16, 2008, Porter Scott, a Professional Corporation, was retained as counsel for the above-named defendants. (Declaration of John Whitefleet.). Plaintiff is a pro per litigant and is currently 6 incarcerated; as such, communication between the parties is severely hampered on shortened notice. Because of Plaintiff's pro se incarcerated status and the recent retention of counsel, Defendants have not contacted Plaintiff in an effort to obtain a stipulation to extend the time.

Defendants submit that good cause exists to allow Defendants an additional thirty days, or 0 up to an including August 25, 2008, to file their dispositive motion because of the recent service of Defendants, recent retention of counsel, and the limited time within which Defendants have had to review the matter in order to respond to the Complaint by appropriate motion. This is Defendants' first request for an extension.

Plaintiff will not be penalized by an extension of time to August 25, 2008, for Defendants to file their dispositive motion.

WHEREFORE, Defendants request this Court modify its Order dated April 25, 2008, to extend the time for Defendants to file dispositive motions up to and including August 25, 18 2008.

Respectfully Submitted, Dated: July 21, 2008 PORTER SCOTT A PROFESSIONAL CORPORATION

John J. Whitefleet Terence J. Cassidy John R. Whitefleet Attorneys for Defendants CECIL BROWN and COMSTOCK

DECLARATION I, John R. Whitefleet, declare as follows:

1. I am an attorney at law, licensed to practice in and before all the courts of the State of California, including the United States District Court, Northern District of California, and am an associate with the professional corporation of Porter Scott, attorneys of record for Defendants CECIL BROWN and HANK COMSTOCK in the above-entitled action.

2. On or about July 9, 2008, Defendants BROWN and COMSTOCK were served with the complaint in the above-mentioned matter.

3. On or about July 16, 2008, Porter Scott, A Professional Corporation, was retained as counsel for the above-named Defendants.

4. We do not have sufficient time to gather documents and prepare a dispositive motion in accordance with the procedural requirements as set forth in Jones v. Bock, 549 U.S. 199 (2007).

5. On behalf of Defendants, I request this Court modify its Order dated April 25, 2008 to extend the time for Defendants to file dispositive motions up to and including August 25, 2008.

I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct, and if called to testify as a witness in this matter I can and will testify competently to the matters of fact contained herein based upon my personal knowledge.

Executed July 21, 2008, at Sacramento, California.

Having reviewed the application of Defendants CECIL BROWN and HANK COMSTOCK to modify the Order dated April 25, 2008, for an extension to file dispositive motions, good cause exists to allow Defendants up to and including August 25, 2008, within which to file a motion for summary judgment or other dispositive motion with respect to this claim

IT IS SO ORDERED.

DECLARATION OF SERVICE

I am a citizen of the United States and employed in Sacramento County, California; I am over the age of years and not a party to the within action; my business address is 350 University Avenue, Suite 200, Sacramento, California 95825.

On the date below I served the attached: EX PARTE APPLICATION TO MODIFY THE ORDER DATED APRIL 25, 2008; DECLARATION OF JOHN R. WHITEFLEET; and PROPOSED ORDER X BY MAIL: I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Sacramento, California.

BY PERSONAL SERVICE: I caused such document to be delivered by hand to the office of the person(s) listed below.

BY OVERNIGHT DELIVERY: I caused such document to be delivered by overnight delivery to the office of the person(s) listed above.

BY FACSIMILE: I caused such document to be transmitted by facsimile machine to the office of the person(s) listed above. 15 addressed as follows: Royce Wilson PRO SE F-73567 Sierra Conservation Center P.O. Box 497 5150 O'Byrnes Ferry Road 26/05L

Jamestown, CA 95327 I declare under penalty of perjury that the foregoing is true and correct and was executed on July 21, 2008, in Sacramento, California.

Cynthia Romero


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