United States District Court, N.D. California
Jerry Dillingham, Plaintiff, Pro se, Corcoran, CA.
For Eva Scruggs, J. Brunscher, R. Binkele, R. Mojica, E. Medina, P. Sulliven, Defendants: France Jaffe, California Department of Justice, Office of the Attorney General -- CLS, San Francisco, CA.
ORDER (1) RE-SERVING DEFENDANT M. CATS; (2) DENYING SERVED DEFENDANTS' REQUEST FOR AN EXTENSION OF TIME TO FILE MOTION FOR SUMMARY JUDGMENT; (3) DENYING WITHOUT PREJUDICE THEIR PENDING MOTION TO DISMISS; (4) DENYING AS MOOT PLAINTIFF'S REQUEST FOR EXTENSION OF TIME TO FILE OPPOSITION; AND (5) DENYING PLAINTIFF'S THIRD REQUEST FOR APPOINTMENT OF COUNSEL Dkts. 32, 34, 40, 42, 44
YVONNE GONZALEZ ROGERS, United States District Court Judge.
Plaintiff, a state prisoner currently incarcerated at the California Substance Abuse Treatment Facility, filed a pro se civil rights complaint under 42 U.S.C. § 1983, stemming from alleged constitutional violations the took place while he was incarcerated at Salinas Valley State Prison (" SVSP"). The operative complaint is Plaintiff's Second Amended Complaint (" SAC"), dkt. 16, which is based on alleged injuries caused by employees of SVSP on unspecified dates when he was incarcerated there from 2011 through 2012.
In an Order dated August 28, 2014, the Court found that Plaintiff's SAC stated cognizable claims against nine Defendants. Dkt. 23. Seven of these Defendants have been served; however, there are two remaining Defendants who have not yet been served--Defendants A. Hedgpeth and M. Cats. Defendant Hedgpeth has since been re-served. Dkt. 36. However, to date, Defendant Cats has not yet been re-served.
In an Order dated September 18, 2014, the Court alerted Plaintiff that it had been informed that there were " no records of . . . Defendant [Cats] ever working at SVSP." Dkt. 28 at 1. Therefore the Court directed Plaintiff to provide it with current address for Defendant Cats. Id.
On October 29, 2014, the Court denied the seven served Defendants' request for an extension of time to file their dispositive motion and directed them to abide by the briefing schedule in the Court's August 28, 2014 Order.
Before the Court are Plaintiff's response to the Court's September 18, 2014 Order relating to unserved Defendant Cats (docketed as his " Motion for Administrative Relief") (dkt. 40); his third request for appointment of counsel (dkt. 32); the seven served Defendants' motion to dismiss (dkt. 34); Plaintiff's motion for an extension of time to file an opposition to the served Defendants' motion to dismiss (dkt. 42); and the served Defendants' motion for an extension of time to file their motion for summary judgment as to the claims not included in their motion to dismiss (dkt. 44). The Court will address each motion below.
I. DEFENDANT CATS
As mentioned above, Defendant Cats has not yet been served in this action. In Plaintiff's response to the Court's September 18, 2014 Order, he states that Defendant Cats is not an SVSP Correctional Officer as the Court had originally indicated he was in its August 28, 2014 Order. Plaintiff now claims that Defendant Cats is actually not an SVSP employee at all, and instead he is the former Director of the California Department of Corrections and Rehabilitation (" CDCR"). Dkt. 40 at 3.
First, the Clerk of the Court is directed to terminate Plaintiff's response, which was docketed as his " Motion for Administrative Relief" to re-serve Defendant Cats at the CDCR, and the Court will issue a new briefing schedule below specifically for Defendant Cats only, and not for the remaining Defendants. As such, these remaining Defendants shall abide by the briefing schedule in the Court's August 28, 2014 and October 29, 2014 Orders, as further explained below.
II. SERVED DEFENDANTS' REQUEST FOR EXTENSION OF TIME TO FILE MOTION FOR SUMMARY JUDGMENT
The seven served Defendants have filed a motion to dismiss, relating to certain claims on the SAC. Dkt. 34. Because they filed the aforementioned motion to dismiss, these served Defendants have filed a request for an extension of time to file a motion for summary judgment as to the claims that will remain if their motion to dismiss is granted, including: " (1) a claim against Defendants Scruggs and Mojica for retaliating against [Plaintiff] for filing grievances; and (2) a deliberate-indifference claim against Defendants Scruggs and Brunscher for spreading rumors that [Plaintiff] was a 'snitch, ' but not for the attack by inmate Lozano." Dkt. 44 at 2. Defendants have requested an extension of time to file their motion for summary judgment up to and including sixty days after the Court rules on the pending motion to dismiss. Id.
As mentioned above, in its October 29, 2014 Order, the Court denied the seven served Defendants' first request for an extension of time to file their dispositive motion and directed them to abide by the briefing schedule in the Court's August 28, 2014 Order. Accordingly, a dispositive motion relating to the claims against the seven served Defendants was due no later than December 29, 2014. Instead of filing such a dispositive motion, these Defendants chose to only file the aforementioned motion to dismiss as to some of the claims on the SAC. By choosing to proceed using this route, Defendants are now filing yet another request for an extension of time, which the Court again DENIES. Filing separate dispositive motions is not in line with the Court's briefing schedule in its August 28, 2014 Order. Doing so also forces Plaintiff, who is a pro se prisoner, to have to file multiple responses to separate dispositive motions. Such a requirement is bound to cause even more delays. In fact, Plaintiff has already requested an extension of time to respond to the pending motion to dismiss. In light of this, the Court not only chooses to deny the pending motion for extension of time, but it also DENIES the pending motion to dismiss (Dkt. 34) without prejudice to refiling it along with the motion for summary judgment as to the ...