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Paul Dean Roberts v. California Dept. of Corrections

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 10, 2012

PAUL DEAN ROBERTS, PLAINTIFF,
v.
CALIFORNIA DEPT. OF CORRECTIONS, DEFENDANT.

The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se who seeks relief pursuant to Title II of the Americans with Disabilities Act (ADA). The court previously issued a discovery and scheduling order, which directed that the parties complete discovery by October 5, 2012, and file dispositive motions by December 28, 2012. See Doc. No. 12.

On September 19, 2012, plaintiff filed with the court a motion to extend discovery. In support, plaintiff alleged that after attending yard one day, plaintiff discovered that his case file, except for three items, was missing. See Doc. No. 14 at 1. In its order denying plaintiff's motion to extend discovery, the court noted that plaintiff's statements about his missing case file were not made under penalty of perjury. See Doc. No. 16 at 2. The court advised plaintiff that, if he filed a statement with the court stating, under penalty of perjury, that his entire case file was taken from his cell by prison officials, the court would look into the matter. Id.

On October 16, 2012, plaintiff filed a "Statement Under Penalties of Perjury In Response to This Courts [sic] Order of October 1, 2012." See Doc. No. 21. In his statement, plaintiff declares that "all copies and/or original documents plaintiff had accumulated, prepared, served, or received during the court of this case (IE: Order from this Court including the June 15, 2012 discovery and scheduling order, letters, motions, investigative notes, retained copies of discovery request [request for admissions], research documents and all other personally prepared documents) were removed from plaintiff's cell during plaintiff's absence." Id. at 1. Plaintiff additionally declares that his case file could only have been accessed and removed from his assigned cell by prison staff unlocking his prison cell door by a key possessed only by prison staff. Id. at 2. Plaintiff concludes that he believes that prison staff removed his papers. Id.

Plaintiff has also moved again to extend discovery. See Doc. No. 18.

Because plaintiff has now sworn to his allegations, the court will order defendant California Department of Corrections and Rehabilitation ("CDCR") to provide a response to the allegations raised in plaintiff's sworn statement. Plaintiff will be given an opportunity to respond. Plaintiff's motion to extend discovery, as well as all pending deadlines, will be held in abeyance pending disposition of this order to show cause.

Accordingly, IT IS HEREBY ORDERED that:

1. Within thirty (30) days of the filing date of this order, defendant shall file a response to plaintiff's October 19, 2012 response (Doc. No. 21);

2. Plaintiff may file an optional reply to defendant's response within thirty (30) days after service of defendant's response; and

3. All pending deadlines, as well as plaintiff's motion to extend discovery (Doc. No. 18), are held in abeyance pending disposition of this order to show cause.

20121210

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