UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 23, 2011
ROBERT JAMES DIXON,
JAMES A. YATES, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PARTIES TO RESPOND TO OBJECTIONS (DOC. 38) RESPONSES DUE WITHIN FOURTEEN (14) DAYS
Plaintiff Robert James Dixon ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). This action is proceeding on Plaintiff's amended complaint against Defendants F. Igbinoza and J. Diep*fn1 for violation of the Eighth Amendment. On September 20, 2010, Defendant Igbinoza filed a motion to dismiss for Plaintiff's failure to exhaust administrative remedies. Plaintiff filed an opposition on May 31, 2011. On July 8, 2011, the undersigned issued a Findings and Recommendations ("F&R"), recommending that Defendant's motion be granted. On July 29, 2011, Plaintiff filed his objections. Doc. 38.
Plaintiff's complaint alleges, inter alia, that Defendant Igbinosa scheduled Plaintiff for a prison transfer, despite Plaintiff having an upcoming, necessary surgery. Plaintiff contends that he had filed an inmate grievance concerning his claim against Defendant Igbinosa. Pl.'s Objections 1-2. This grievance was treated as an emergency appeal, and was granted in part at the first level of review, canceling Defendant Igbinosa's proposed transfer. Id.
The Court has examined the record in this action. In Plaintiff's opposition, Plaintiff attached as an exhibit a screen out of Plaintiff's inmate grievance No. PVSP-D-08-1325, which allegedly concerns Plaintiff's claims against Defendant Igbinosa. Pl.'s Opp'n, Ex. A, Doc. 36. Neither party, however, has produced this grievance.
The Court cannot make a final determination regarding Defendant's motion to dismiss without this grievance. Thus, the Court will require both parties to produce this grievance, if possible. If a party fails to produce the grievance, the party is required to submit a declaration as to why he was unable to do so.
Accordingly, it is HEREBY ORDERED that:
1. The parties are to respond to Plaintiff's objections within fourteen (14) days from the date of service of this order;
2. This response is to include grievance No. PVSP-D-08-1325; and 3. If a party is unable to timely produce this grievance, the party is required to submit a declaration explaining why he was unable to comply.
IT IS SO ORDERED.