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Sullivan v. Biter

United States District Court, E.D. California

October 28, 2019

MICHAEL J. SULLIVAN, Plaintiff,
v.
M. D. BITER, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR A FIFTH EXTENSION OF TIME TO FILE OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND DISCOVERY RESPONSES, AND DENYING, WITHOUT PREJUDICE, PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (ECF NO. 80)

         Plaintiff Michael J. Sullivan is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Plaintiff's motion for a 30 to 60-day extension of time to file opposition to deposition and discovery, and for the appointment of counsel, filed on October 21, 2019. (ECF No. 80.)

         I. RELEVANT HISTORY

         This action is currently proceeding on Plaintiff's Eighth Amendment conditions of confinement claim against Defendant Biter, arising out of allegations of arsenic-contaminated drinking water at Kern Valley State Prison. (ECF No. 36.)

         On April 18, 2019, Defendant M. D. Biter filed a motion to compel Plaintiff's deposition and discovery responses. (ECF No. 62.)

         On May 13, 2019, Plaintiff filed a motion for a 30-day extension of time to file an opposition to Defendant's motion to compel deposition and discovery responses. (ECF No. 64.) On May 15, 2015, the Court granted Plaintiff's motion and ordered Plaintiff to file an opposition to Defendant's motion to compel no later than thirty (30) days from the date of service of the order. (ECF No. 65.)

         On June 17, 2019, Plaintiff filed a second motion for a 30-day extension of time to file an opposition to Defendant's motion to compel. (ECF No. 66.) On June 18, 2019, the Court granted Plaintiff's second motion for an extension of time and ordered Plaintiff to file an opposition to Defendant's motion to compel no later than thirty (30) days from the date of service of the order. (ECF No. 67.)

         On July 19, 2019, Plaintiff filed a motion for a third extension of time to file an opposition to Defendant's motion to compel Plaintiff's deposition and discovery responses. (ECF No. 69.) Since Plaintiff's motion for a third extension of time was based on the same assertions of good cause that were the basis for Plaintiff's first and second extensions of time - lack of medically necessary pain medications and ongoing problems with gaining access to the law library - the Court ordered Defendant to file a response to Plaintiff's motion for a third extension of time. (ECF No. 70.) Following two extensions of time, on August 27, 2019, Defendant filed a response to Plaintiff's motion for a third extension of time. (ECF No. 75.)

         After reviewing Defendant's response, the Court determined that Plaintiff was being provided with medically necessary pain medications, but that the evidence before the Court failed to addressed Plaintiff's argument that he has an ongoing problem with law library access. (ECF No. 76.) Therefore, the Court determined that Plaintiff had demonstrated good cause for a final extension of time, but determined that an extension of fourteen days, rather than thirty days, was reasonable under the circumstances. Accordingly, the Court granted in part Plaintiff's motion for a third extension of time. (Id.)

         On September 12, 2019, Plaintiff filed a motion to “stay in abeyance these proceedings, while he is out to court from state prison.” (ECF No. 77.) In his motion, Plaintiff stated that he had been transferred to the Contra Costa County Jail in Martinez, California so that he could be resentenced by the Superior Court of California, County of Contra Costa and that he was required to leave all of his boxes of legal materials and personal property at Richard J. Donovan Correctional Facility when he was transferred to the Contra Costa County Jail. Plaintiff requested that the Court stay this action until the state court resentencing proceedings are finished, he is transferred back to Richard J. Donovan Correctional Facility, and all of his legal materials are returned to his possession.

         On September 27, 2019, Defendant filed a non-opposition to Plaintiff's motion to stay. (ECF No. 78.) While Defendant stated that he did not oppose Plaintiff's stay motion, Defendant noted that Plaintiff has failed to explain why he needed anything from his legal property to complete his opposition to Defendant's motion to compel Plaintiff's deposition and responses to Defendant's discovery requests.

         On October 1, 2019, the Court denied Plaintiff's motion to stay proceedings because Plaintiff had failed to demonstrate that there was sufficient justification to support an indefinite stay of this action and Plaintiff had failed to explain why he needs his legal materials to complete and file his opposition to Defendant's motion to compel, or otherwise continue prosecuting this case. (ECF No. 79, at 2-3.) However, since Plaintiff had been transferred from Richard J. Donovan Correctional Facility to the Contra Costa County Jail, without his legal property, the Court found that it was in the interests of justice to send Plaintiff a courtesy copy of Defendant's motion to compel Plaintiff's deposition and discovery responses, and extend Plaintiff's deadline to file an opposition to Defendant's motion to compel for fourteen (14) days from the date of service of the order. (Id. at 3.) Further, the Court noted that, with the fourth extension of time, Plaintiff will have had almost six months to oppose Defendant's motion to compel, which the Court finds is ample time given the substance of the motion to compel and the fact that the motion to compel is based on Plaintiff's refusal to sit for a deposition or respond to Defendant's propounded discovery requests. (Id. at 3-4.) Finally, the Court advised Plaintiff that no further extensions of time to file an opposition to Defendant's motion would be granted and that, if Plaintiff failed to file an opposition in compliance with this order, Defendant's motion to compel would be deemed unopposed. (Id. at 4.)

         On October 21, 2019, Plaintiff filed a motion for a fifth extension of time to file opposition to Defendant's motion to compel Plaintiff's deposition and discovery responses, and for the appointment of counsel. (ECF No. 80.)

         Defendant has not had the opportunity to file a response to Plaintiff's motion for a fifth extension of time, but the Court finds that a response is unnecessary. Plaintiff's motion for a ...


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