ORDER DENYING PLAINTIFF'S MOTION TO VACATE ORDER AND ORDER GRANTING PLAINTIFF'S MOTION FOR NEW DEADLINE (ECF Nos. 137, 138) THIRTY-DAY DEADLINE
Plaintiff Eric Charles Rodney Knapp ("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 September 29, 2010, against Defendants Koenig, Pate, Otto, Backlund, Roberson, Clay, Gibb, Hannah, Semsen, Lyons, and Esquer for deliberate indifference to Plaintiff's need for single cell status in violation of the Eighth Amendment.
On August 31, 2012, Plaintiff filed a motion for relief from the adverse orders of the magistrate judges. (ECF No. 125.) Defendants filed an opposition on September 20, 2012. (ECF No. 126.) On September 25, 2012, Defendants filed a motion for summary judgment and motion for a protective order, and an order issued on September 26, 2012, staying the discovery in this action and ordering Plaintiff to file a response to the motion for summary judgment within thirty days. (ECF Nos. 128, 129, 130.) On September 27, 2012, Plaintiff filed a reply to Defendants' opposition to his motion for relief. (ECF No. 131.) On October 18, 2012, Plaintiff filed a motion to stay the motion for summary judgment so that the Court could rule on his motion for relief, and to allow Defendants to withdraw their motion which Plaintiff alleged was brought in bad faith. (ECF No. 132.) On October 23, 2012, Defendants filed an opposition to Plaintiff's motion to stay, and an order issued denying Plaintiff's motion for relief and denying the motion for a stay on October 29, 2012. (ECF Nos. 134, 135.) On November 8, 2012, Plaintiff filed a motion for an order setting a new deadline in this action and a motion to vacate the order denying the stay. (ECF No. 137, 138.)
Plaintiff complains that the order denying his motion for a stay issued prior to the Court receiving and considering his reply to Defendants' opposition to the motion. Plaintiff's reply (Doc. No. 136) argued that the proceedings should be stayed pending resolution of his motion for relief (ECF No. 125). See Doc. No. 136. Plaintiff's reply also argued that a stay should be granted because Defendants' summary judgment motion violated Rule 11. See id. However, when the Court ruled on the motion to stay, it also ruled on Plaintiff's motion for relief (ECF No. 125) and found an insufficient indication that Rule 11 was being violated. See ECF Doc. No. 135. Plaintiff's reply does not change the Court's analyses or its ruling on Plaintiff's motion to stay. Error, if any, in not considering Plaintiff's reply was harmless. Thus, Plaintiff's motion to vacate the order denying the temporary stay is denied.
However, Plaintiff's motion for an extension of time to file an opposition to the motion for summary judgment shall be granted.
Based on the foregoing it is HEREBY ORDERED that:
1. Plaintiff's motion to vacate the order denying the motion for a temporary stay (ECF No. 138), is DENIED;
2. Plaintiff's motion for a new deadline (ECF No. 137) is GRANTED; and 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a response to Defendants' motion for summary judgment.
UNITED STATES DISTRICT JUDGE
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