The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel with a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges, inter alia, that defendants were deliberately indifferent to his serious medical needs. On December 29, 2010, the court issued a scheduling order setting the discovery deadline for April 15, 2011, but providing that all requests for discovery shall be served not later than sixty days prior to that deadline. (Dkt. No. 103.) On February 28, 2011, plaintiff filed a motion to modify the scheduling order based on his recent hospitalizations and an inability to obtain ink to complete his discovery requests. (Dkt. No. 106 at 1.) Plaintiff contends he requires an extension of the discovery deadline so he can propound requests for admissions and interrogatories to defendants.
However, on March 4, 2011, plaintiff filed a motion for summary judgment.
On March 16, 2011, defendants filed a request for extension of time to oppose plaintiff's motion for summary judgment, presently due March 22, 2011. Counsel for defendants states he was assigned to this case less than two months ago after previous counsel left the office. By early morning of March 18, 2011, defendants had not filed an opposition or other response to plaintiff's motion to extend the discovery deadline, although the response is not due until March 21, 2011. Local Rule 230(l).
However, plaintiff's filings are inconsistent. If plaintiff still needs to propound discovery, his motion for summary judgment is premature. Indeed, the dispositive motion deadline does not run until July 8, 2011. In light of this inconsistency, the court will deny both of plaintiff's motions without prejudice to their renewal. Plaintiff shall file, within twenty-one days from the date of this order, the attached "Notice of Renewal of Motion," asking the court to renew the appropriate motion. Plaintiff does not have to re-file either motion; the notice of renewal will serve to put defendants on notice of the motion plaintiff intends to pursue.
If plaintiff opts to pursue the motion to extend the discovery deadline, defendants shall file a response within twenty-one days after plaintiff files his notice of renewal. Plaintiff is cautioned, however, that the court may take judicial notice*fn1 of any other civil rights action he is pursuing in any federal court to determine whether he has been unable to diligently pursue discovery as required by the December 29, 2010 discovery and scheduling order. As an example, defendants' opposition to plaintiff's discovery motion filed in Hollis v. Gorby, 2:09-cv-1627 DAD (TEMP) (Dkt. No. 49), includes a two and a quarter page chart listing documents plaintiff has filed in federal courts between November 1, 2010, and February 28, 2011. At present, plaintiff has seven civil rights actions pending in the Eastern District.
If plaintiff opts to pursue the motion for summary judgment, defendants shall file their opposition within twenty-one days after the filing of the notice of renewal selecting this option. If plaintiff fails to file a notice of renewal within twenty-one days from the date of this order, the case shall proceed as scheduled in the December 29, 2010 discovery and scheduling order. (Dkt. No. 103.)
In light of this order, defendants' motion for extension is denied without prejudice.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's February 28, 2011 motion (dkt. no. 106) is denied without prejudice;
2. Plaintiff's March 4, 2011 motion for summary judgment (dkt. no. 107) is denied without prejudice;
3. Defendants' March 16, 2011 motion for extension of time is denied without prejudice;
4. Within twenty-one days from the date of this order, plaintiff shall file the attached Notice of Renewal of Motion selecting the option he wishes to pursue. If plaintiff fails to timely file the Notice of Renewal of Motion, the case will proceed under the December 29, 2010 order. (Dkt. No. 103.)
5. If plaintiff opts to pursue one of these motions, defendants shall file a response or opposition to the motion plaintiff elects to pursue within twenty-one days from the filing of the Notice of Renewal of Motion. ...