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Fortanel v. Flecker

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


September 28, 2009

LIBARDO FORTANEL, II, PLAINTIFF,
v.
TOM FLECKER,*FN1 ET AL. DEFENDANT.

The opinion of the court was delivered by: Peggy A. Leen United States Magistrate Judge

ORDER

(Mtn to Extend Time - Dkt. #18)

This matter is before the court on Defendants' Nunc Pro Tunc Motion for Extension of Time to File a Responsive Pleading (Dkt. #18). The court has considered the Motion.

Plaintiff is a state prisoner proceeding pro se. On July 23, 2008, the court entered an Order (Dkt. #8) allowing Plaintiff to proceed in forma pauperis, screening Plaintiff's complaint pursuant to 28 U.S.C. § 1915(e), and directing service on Defendants Felker and Wright. Plaintiffs Complaint alleges that on May 21, 2007, he was injured at the High Desert State Prison during a riot caused by severe overcrowding. Plaintiff alleges that Defendants Felker and Wright are liable for his injuries because they were aware that the overcrowding was causing escalated tension among inmates, and they failed to act to remedy the conditions.

Defendants seek an extension of time nunc pro tunc to file a responsive pleading to Plaintiff's Complaint. In support, counsel for Defendants represents that due to an administrative error, the California Attorney General's Office was not made aware of this case or Defendants' request for representation until after the deadline for filing a responsive pleading had passed. Counsel indicates that in order to prepare the responsive pleading, she needs to obtain documents from High Desert State Prison and meet and confer with her clients concerning the allegations set forth in Plaintiff's Complaint.

Counsel also indicates that because Plaintiff is proceeding pro se and is currently incarcerated, it is nearly impossible to obtain a stipulation to extend time. On February 27, 2009, Defendants filed a Motion to Dismiss the Complaint (Dkt. #21) and a Memorandum of Points and Authorities (Dkt. #22).

Having reviewed and considered the matter, and good cause appearing, IT IS ORDERED that Defendants' Nunc Pro Tunc Motion for an Extension of Time to File Responsive Pleading (Dkt. #18) is GRANTED.


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