(PC) Thorpe v. Hearn ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RENELL THORPE, No. 2:19-cv-1974 KJN P 12 Plaintiff, 13 v. ORDER 14 C. HEARN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On July 23, 2020, the undersigned granted plaintiff thirty days to show 19 cause why this action should not be dismissed without prejudice for his failure to prosecute. 20 (ECF No. 36.) For the reasons stated herein, the order to show cause is discharged. 21 On March 10, 2020, defendants filed a motion for partial summary judgment. (ECF No. 22 31.) Plaintiff failed to file an opposition. Accordingly, on April 13, 2020, the undersigned 23 granted plaintiff sixty days to file an opposition. (ECF No. 34.) Sixty days passed and plaintiff 24 did not file an opposition to the motion for partial summary judgment. 25 On June 25, 2020, defendants filed a motion to compel. (ECF No. 35.) Defendants 26 argued that plaintiff failed to respond to two sets of requests for admissions. Defendants 27 requested that the requests for admissions be deemed admitted. Plaintiff did not file an 28 opposition to defendants’ motion to compel. 1 On July 23, 2020, the undersigned ordered plaintiff to show cause within thirty days why 2 this action should not be dismissed based on his failure to oppose defendants’ motion for partial 3 summary judgment and motion to compel. (ECF No. 36.) Thirty days passed and plaintiff did 4 not respond to the order to show cause. However, on August 3, 2020, plaintiff filed a motion for 5 extension of time to file an opposition to defendants’ motion for partial summary judgment. 6 (ECF No. 37.) Attached to the motion for extension of time are most of plaintiff’s responses to 7 defendants’ requests for admissions. (Id.) 8 Plaintiff’s motion for extension of time demonstrates that plaintiff intends to prosecute 9 this action. Accordingly, the order to show cause is discharged. 10 In the motion for extension of time, plaintiff alleges that the law library at the Substance 11 Abuse Training Facility (“SATF”) uses the Law Library Electronic Delivery System (“LLEDS”). 12 Plaintiff allege that his use of LLEDS to conduct research is slow because he has no training in 13 LLEDS and his law library experience is limited. Plaintiff also alleges that his law library access 14 is limited due to the COVID-19 pandemic. For these reasons, plaintiff requests an extension of 15 time to file an opposition to defendants’ motion for partial summary judgment. 16 The undersigned finds it extremely troubling that plaintiff’s motion for extension of time 17 does not address his failure to respond to the April 13, 2020 order granting plaintiff sixty days to 18 file his opposition. Nevertheless, in these unusual times, the undersigned finds good cause to 19 grant plaintiff one final opportunity to file an opposition to defendants’ summary judgment 20 motion. No further requests for extension of time will be granted. 21 Plaintiff’s motion for extension of time fails to address defendants’ motion to compel. 22 However, plaintiff has now provided defendants with responses to the requests for admissions, 23 except for responses to request nos. 9-11, second set. It appears that plaintiff inadvertently failed 24 to include his responses to request nos. 9-11, second set. 25 In the motion to compel, defendants request that the requests for admissions be deemed 26 admitted based on plaintiff’s failure to respond. However, neither defendants’ requests for 27 admissions nor their meet and confer letter, attached to the motion to compel, advised plaintiff 28 that the requests could be deemed admitted if he did not provide timely responses. For this 1 reason, the undersigned is not inclined to deem defendants’ requests for admissions admitted. 2 See Diggs v. Keller, 181 F.R.D. 468, 469 (D. Nev. 1998) (“[B]efore a matter may be deemed 3 admitted against a pro se prisoner for failure to respond to a request, the request for admission 4 should contain a notice advising the party to whom the request is made that, pursuant to Rule 36 5 of the Federal Rules of Civil Procedure, the matters shall be deemed admitted unless said request 6 is responded to within thirty (30) days after service of the request or within such shorter or longer 7 time as the court may allow.”); United States v. $30,464.00 in U.S. Currency, 2015 WL 8 10937514, at *3 (C.D. Cal. Feb. 9, 2015) (same); Medina v. Donahoe, 854 F.Supp.2d 733, 748 9 (N.D. Cal. 2012) (same). 10 Because plaintiff has now provided defendants with responses to most of the requests for 11 admissions, defendants are ordered to show cause why their motion to compel should not be 12 deemed resolved, except for request nos. 9-11, second set. 13 Plaintiff is ordered to provide defendants with his responses to request nos. 9-11, second 14 set, within thirty days.1 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The July 23, 2020 order to show cause (ECF No. 36) is discharged; 17 2. Plaintiff’s motion for an extension of time to file an opposition to defendants’ motion 18 for partial summary judgment (ECF No. 37) is granted; plaintiff is granted forty-five 19 days to file an opposition; no further requests for extension of time will be granted; 20 3. Within twenty-one days of the date of this order, defendants shall show cause why 21 their motion to compel should not be deemed resolved, but for request for admissions 22 nos. 9-11, second set; 23 //// 24 //// 25 1 Request for admission no. 9 states, “Admit that on February 27, 2020, you authored a J-Pay message to Leslie Peete instructing her to send $50 to an inmate Padilla (G-47340).” (ECF No. 26 35-2 at 24.) Request no. 10 states, “Admit that on March 1, 2020, $50 was deposited to inmate 27 Padilla’s account.” (Id.) Request no. 11 states, “Admit that on May 8, 2019, $90 was deposited to inmate Jimmy Render’s account.” (Id.) Any further motion to compel regarding these requests 28 shall address the relevancy of these requests. MASS EUTOING IN RAMU OI Ie AY 1 4. Within thirty days of the date of this order, plaintiff shall serve defendants with a 2 response to request for admissions nos. 9-11, second set. 3 | Dated: August 31, 2020 ‘ Fesll Arn 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 6 thorp 1974.36 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28