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Garrett v. Walker
June 25, 2009
JODEE GARRETT, SR., PLAINTIFF,
JAMES WALKER, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently under consideration are plaintiff's objections to this court's March 5, 2009, finding that plaintiff failed to prosecute this action and recommendation that this action be dismissed without prejudice. For the reasons explained below, the court vacates the findings and recommendations and gives plaintiff one more opportunity to prosecute this action. Plaintiff is cautioned that further failures to prosecute, or to comply with court orders or the Local Rules will result in a recommendation for dismissal. Fed. R. Civ. P. 16(b), 41(b); Local Rule 11-110.
On October 27, 2009, defendants filed a motion for summary judgment. Plaintiff did not oppose this motion. In the findings and recommendations filed March 5, 2009, the court found that plaintiff had received a clear explanation about how to respond to a motion for summary judgment and warnings that dismissal would result from a failure to oppose such a motion. The court further determined that despite ample opportunity to oppose defendants' motion, plaintiff filed no opposition. Thus, the court found that plaintiff failed to prosecute this action and that dismissal without prejudice was appropriate. In his objections to the findings and recommendations, plaintiff asserts that he suffers from a mental impairment that interfered with his ability to file an opposition brief. He submits records showing that he has been diagnosed as having some sort of psychosis for which he takes at least four medications. He asserts that his mental illness and the medications prescribed to treat it interfere with his ability to think rationally and to concentrate. Thus, he asserts, he has been unable to file an opposition to the defendants' motion for summary judgment. The court notes that in spite of plaintiff's medical or mental status he has managed to file and serve numerous other pleadings, including a motion for preliminary injunction, discovery requests, a Rule 56(f) opposition to a motion for summary judgment, objections to findings and recommendations, and a request for a new scheduling order. It appears that he has found a fellow prisoner to assist him to discern defendants' arguments and respond to them, thereby enabling him to file an opposition and his objections seek another opportunity to do so.*fn1
For these reasons, the court finds adequate cause to afford plaintiff one more opportunity to file an opposition to defendants' motion for summary judgment.
Accordingly, it is ORDERED that:
1. The March 5, 2009, findings and recommendations are vacated; and
2. Plaintiff shall file an opposition to defendants' motion for summary judgment within 30 days of the date this order is served. The court does not intend to ...
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