FINDINGS AND RECOMMENDATIONS
Plaintiff is a former state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that his rights under the Eighth Amendment were violated during his incarceration at Deuel Vocational Institution (DVI) through exposure to contaminated water that was both unsafe to drink and unsanitary for bathing, cooking and maintaining oral hygiene. Specifically, plaintiff alleges that the water at DVI was unfit for human consumption, that the DVI plumbing is archaic, that DVI employees had been instructed not to drink the water, and that the faucet water in his cell looked like mud and had a putrid odor. Plaintiff claims that the water caused him to vomit, and that he is subject to future health risks due to the contaminated water. This matter is before the court on defendants' motions for summary judgment.
This action has an unfortunately lengthy procedural history before the court with delays and long periods of inaction. Plaintiff filed his original complaint on August 17, 1994. Prior to the time this action was filed, another case raising the same claims was filed on May 17, 1994, Arreaga v. Olivarez, Case No. 2:94-cv-0761 GEB GGH P (Arreaga). Between June 1994 and December 1994, this action and sixteen other cases were related to Arreaga,*fn1 which was designated as the lead case. By order filed February 10, 1995, all related cases were stayed and administratively closed, with the exception of the lead case. By order filed March 6, 1995, the instant action was designated as the lead case and reopened, and the Arreaga case was also stayed and administratively closed.*fn2
On April 20, 1995, the court dismissed plaintiff Yellen's complaint
and granted him leave to file an amended complaint. This action is
proceeding on that amended complaint, filed May 12, 1995.*fn3
By order filed July 7, 1995, the court determined that
service was appropriate upon seven of the named defendants. At all times relevant
to the allegations of the amended complaint, five of those defendants
were employed by the California Department of Corrections (now known
as the California Department of Corrections and Rehabilitation): A.M.
Olivarez, then Warden of DVI; J. Gomez, then Director of the
California Department of Corrections; J.J. Pacheco, Chief of Plant
Operations at DVI; Loran Reeves, Plant Engineer at DVI; and Shirley
Stiles, then associate warden at DVI (hereafter Corrections
defendants). One defendant, Joseph Spano, at all times relevant to
this action was employed by the California Department of Health
Services. The seventh defendant is the San Joaquin County Public
Health Services (hereafter County Public Health).*fn4
The Corrections defendants filed their answer on October 6, 1995. The County Public Health defendant filed its answer on February 9, 1996. Defendant Spano filed his answer on October 10, 1996, following denial of his motion to dismiss.
By order filed October 11, 1996, the court set a final deadline of February 18, 1997 for completion of discovery, and a deadline of April 24, 1997 for the filing of dispositive motions. On April 24, 1997, defendants filed motions for summary judgment.
By order filed March 6, 1998, this court appointed Anthony Saracino, then of Geo Scientific Consulting, as the court's expert technical advisor.*fn5 See Fed. R. Evid. 706.*fn6
Specifically, Mr. Saracino was appointed by the court to review the reports, declarations, technical data and water samples submitted by the parties in connection with the defendants' motions for summary judgment. He will be asked to prepare a report for the court, which will be provided to the parties, assessing that material with respect to the issue of water quality at DVI and any effect that water could be expected to have upon persons using it on a daily basis.
Order filed March 6, 1998 (Doc. No. 237), at 11. Defendants' April 24, 1997 motions for summary judgment were dropped from calendar pending receipt of Mr. Saracino's report, and deemed renewed and resubmitted when Mr. Saracino completed his report. Id. On February 11, 2002, Mr. Saracino submitted his final report to the court.
On April 11, 2005, this court issued an order directing plaintiff to notify the court within fifteen days whether he intended to proceed with the action. Order filed April 11, 2005, at 2. The court's order was predicated on plaintiff's release from prison on parole. Id. at 1. The April 11, 2005 order was returned undelivered*fn7 , and on April 27, 2005, the court issued findings and recommendations recommending dismissal of the action due to plaintiff's failure to notify the court of his current address as required. On May 18, 2005, plaintiff filed objections to those findings and recommendations and a notice of change of address. By order filed May 27, 2005, the April 27, 2005 findings and recommendations were vacated.
On January 19, 2007, plaintiff filed a motion to reopen discovery. On December 20, 2010, this court issued an order and findings and recommendations denying plaintiff's motion to reopen discovery and recommending that plaintiff's request for injunctive relief be dismissed as moot due to plaintiff's release from incarceration. On January 10, 2011, the court issued an order directing plaintiff to inform the court within ten days whether he intended to prosecute the action further. On the same day, the copy of the December 20, 2010 order and findings and recommendations served on plaintiff were returned undelivered. On January 18, 2011, the district court adopted the December 20, 2010 findings and recommendations in full and dismissed plaintiff's request for injunctive relief.
On January 20, 2011, the copy of the January 10, 2011 order served on plaintiff was also returned undelivered. On January 26, 2011, the court issued findings and recommendations recommending dismissal of the action due to plaintiff's lack of prosecution and for failure to respond to a court order. On January 28, 2011 and February 3, 2011, respectively, the copies of the January 18, 2011 order and the January 26, 2011 findings and recommendations served on plaintiff were returned undelivered. On March 1, 2011, the district court adopted the January 26, 2011 findings and recommendations in full and dismissed the action. Judgment was entered on the same day. The copies of that order dismissing the action and judgment served on plaintiff were returned undelivered on March 7, 2011.
On March 21, 2011, plaintiff filed yet another notice of change of address. On March 25, 2011, the order dismissing the action and judgment thereon were reserved on plaintiff. On April 7, 2011, plaintiff filed a motion for reconsideration of the dismissal of the action. Defendants opposed the motion. On June 10, 2011, the matter was taken under submission following an in court hearing and a chambers conference for consideration of a possible settlement of the action. Following the request of the parties, the final report of the court appointed expert Mr. Saracino, dated February 11, 2002, was filed in the court file that same day.
On October 27, 2011, counsel for the Corrections defendants filed with the court a letter that was sent to plaintiff on October 20, 2011, advising plaintiff that the Corrections defendants were declining to engage in further settlement negotiations. On December 14, 2011, this court issued findings and recommendations recommending that plaintiff's motion for reconsideration of the court's order dismissing the action due to plaintiff's lack of prosecution and for failure to respond to court orders be granted and that the March 1, 2011 order and judgment thereon be vacated. On January 19, 2012, the assigned District Judge adopted those findings and recommendations in full and referred the matter back to the undersigned for further proceedings. On January 20, 2012, this court issued and order directing defendants to file renewed motions for summary judgment within thirty days.
On February 1, 2012, plaintiff filed a motion to reopen discovery and notice that he would be unavailable for the month of February 2012. By order filed February 15, 2012, this court denied plaintiff's motion to reopen discovery and extended the time for defendants to file their motions for summary judgment to February 29, 2012. Defendants filed their motions on that day, noticing them for hearing on April 27, 2012 On April 2, 2012, plaintiff filed a motion for a thirty day extension of time to file opposition to the motions. By order filed April 12, 2012, plaintiff's motion was denied, plaintiff was granted a shorter extension of time than requested and was directed to file any opposition on or before April 20, 2012, and hearing on the motions was continued to May 11, 2012.
Plaintiff did not timely file an opposition to any motion for summary judgment, and by order filed April 30, 2012, plaintiff was directed to show cause in writing why the motions should not be granted. Plaintiff did not respond to the order to show cause. For that reason, on May 9, 2012, the court issued an order and findings and recommendations vacating the May 11, 2012 hearing and again recommending dismissal of the action pursuant to Federal Rule of Civil Procedure 41(b).
On May 17, 2012, plaintiff filed a motion for a leave to file a late opposition to summary judgment and a proposed opposition to defendants' motions for summary judgment. On May 29, 2012, plaintiff filed a motion for extension of time to file objections to the May 9, 2012 findings and recommendations, and on June 25, 2012, plaintiff filed objections to the May 9, 2012 ...