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Glass v. Beer

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 6, 2009

DONALD GLASS, PLAINTIFF,
v.
R. BEER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR DEFAULT, WITH PREJUDICE

(Doc. 178)

Plaintiff Donald Glass ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed March 22, 2004, against Defendants Beer, Keener, Sloss, Morales, and Dill for violation of the Eighth Amendment, and against Defendants Beer, Keener, Sloss, Morales, Dill, Butts, Adkison, Gonzales, Castillo, Buckley, Streeter, Marshall, and Lloren for retaliation. On March 2, 2009, Plaintiff filed a motion seeking default against Defendants for failing to file a reply to his opposition to their motion for summary judgment and for failing to file an opposition to his cross-motion for summary judgment. Fed. R. Civ. P. 55.

Defendants' motion for summary judgment is under submission, and will be resolved in due course. Local Rule 78-230(m). Defendants were under no obligation to file a reply to Plaintiff's opposition to their motion, and their decision to waive the reply is not subject to redress by Plaintiff.

The deadline for filing pretrial dispositive motions was September 1, 2006. (Doc. 95.) Although Plaintiff was granted extensions of time to file his opposition to Defendants' motion, the pretrial dispositive motion deadline was not extended and Plaintiff was not given leave to file a late cross-motion. (Docs. 109, 110, 125, 167, 171.)

Plaintiff's cross-motion is untimely and will not be considered by the Court. Accordingly, Plaintiff's contention that Defendants are in default for failing to oppose his motion is without merit, and Plaintiff's motion for default is HEREBY DENIED, with prejudice.

IT IS SO ORDERED.

20090306

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