UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 28, 2011
GUADALUPE GARCIA, DDS,
PLAINTIFF'S MOTION FOR STAY IS DENIED AND PLAINTIFF'S REQUEST FOR EXTENSION OF TIME IS GRANTED (ECF No. 44)
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DUE WITHIN THIRTY DAYS
Plaintiff Wade Rainey ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's Complaint, filed November 12, 2008, against Defendant Garcia for deliberate indifference to Plaintiff's serious medical need in violation of the Eighth Amendment. (ECF No. 1.)
Defendant filed a Motion for Summary Judgment on September 27, 2010. (ECF No. 39.) On October 25, 2010, Plaintiff requested an additional ninety days to file his Opposition, which the Court granted. (ECF Nos. 41 & 42.) More than ninety days passed without Plaintiff filing an Opposition. On February 8, 2011, the Court ordered Plaintiff to file an Opposition or otherwise respond to the Motion within thirty days or face dismissal with prejudice for failure to prosecute. (ECF No. 43.)
On March 14, 2011, Plaintiff filed an "Answer" to the Order. (ECF No. 44.) In his Answer, Plaintiff states that he mailed his Opposition on November 9, 2010. This Opposition was never received by the Court and Plaintiff only became aware of that when he received the Court's Order ordering him to respond. Plaintiff states that this is evidence that his mail is being interfered with by prison officials. However, Plaintiff goes on to state that he is currently able to correspond with the Court freely. (ECF No. 44, p. 2.) Taking this statement as true, the Court wonders why Plaintiff did not re-mail his Opposition along with his Answer pleading.
Plaintiff also appears to ask the Court to stay the action until he can exhaust his administrative remedies as to the mail interference. This request is DENIED. This action is not about mail interference; it is only regarding Plaintiff's Eighth Amendment claims against Defendant Garcia for deliberate indifference to his dental issues. Plaintiff's statements about mail interference, while showing good cause for an extension, have nothing to do with this action and will not be addressed here.
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff's request for a stay is DENIED;
2. Plaintiff is GRANTED one final opportunity to file an Opposition to Defendant's Motion for Summary Judgment. Plaintiff's Opposition is due within thirty days of the date of service of this Order;
3. No further extensions of time shall be granted; and
4. Failure to respond to Defendant's Motion in compliance with this Order will result in dismissal of this action, with prejudice, for failure to prosecute.
IT IS SO ORDERED.
UNITED STATES MAGISTRATE JUDGE
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