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James L. Davis, Pc v. Recusal Ramen

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 1, 2011

JAMES L. DAVIS, PC PLAINTIFF,
v.
RECUSAL RAMEN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR A WRIT OF MANDATE AND MOTION FOR (ECF Nos. 98, 106)

ORDER ADDRESSING PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR AN EXTENSION OF TIME (ECF No. 104)

Plaintiff James L. Davis ("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 the third amended complaint, filed August 21, 2008, against Defendants Ramen, Rangel, Solis, and Johnson for deliberate indifference to serious medical needs in violation of the Eighth Amendment rights. Plaintiff filed an emergency petition for a writ of mandate on January 19, 2011. (ECF No. 98.) On February 18, 2011, the Court granted Defendants' motion for an extension of time to file a reply in support of their motion for summary judgment. (ECF No. 101.) Plaintiff filed an opposition to Defendants' motion for an extension of time on February 25, 2011. (ECF No. 105.) On March 14, 2011, Plaintiff filed a motion for recusal. (ECF No. 106.) On March 23, 2011, this case was reassigned to the undersigned. (ECF No. 108.)

Plaintiff's motions filed February 18, 2011, and March 14, 2011, both object to the Honorable Sheila Oberto hearing this action. Based upon the reassignment of this action to the undersigned on March 23, 2011, Plaintiff's motions shall be denied as moot.

On February 16, 2011, Defendants filed a motion for a fifteen day extension of time to file a reply to Plaintiff's opposition to the motion for summary judgment. Defendants requested the extension of time because the opposition that was received in the mail was not the document that Plaintiff filed with the Court. Defendants received a 72 page document entitled opposition to summary judgment. The proof of service was dated January 25, 2011,*fn1 but the envelope was postmarked February 2, 2011. The document was placed in defense counsel's mailbox on or around February 7, 2011, however she was out of the office until February 14, 2011. Additionally, the document filed with the court is not the opposition served upon Defendants. Plaintiff filed a 208 page document entitled traverse on February 4, 2011. Because of these issues Defendants requested an additional fifteen days to file their reply to Plaintiff's opposition. The Court found good cause and granted the motion.

Plaintiff objects to the "excessive use of extension [sic] of time." (Opp. 1, ECF No. 104.) Plaintiff states that he placed his opposition to the motion for summary judgment in envelopes and mailed them on January 25, 2011. (Id. at 2.) Defense counsel did not leave the planet and she could have been reached by a cell phone or pager by her office assistant. Plaintiff contends that defense counsel's excuse is improper, and states that defense counsel is lying when she claims that she did not receive the same motion that was filed with the Court. (Id. at 3.)

Initially, Plaintiff is advised that his unsupported allegations against defense counsel are inappropriate. The Court will not tolerate personal attacks upon opposing counsel and further similar conduct may result in the imposition of sanctions. Chambers v. NASCO, Inc., 401 U.S. 32, 43 (1991). The Court found good cause based upon the delay in receipt of the documents and defense counsel's representation that she did not receive the same document that was filed with the Court. The Court notes that defense counsel only requested a brief, fifteen day continuance, which is not an excessive amount of time in the circumstances.

Accordingly, it is HEREBY ORDERED that:

1. Plaintiff's emergency petition for writ of mandate, file January 19, 2011, is DENIED as moot; and

2. Plaintiff's motion for recusal, filed March 14, 2011, is DENIED as moot.

IT IS SO ORDERED.


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