(PC) Ellesbury v. Fernandez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLARENCE VERNE ELLESBURY, No. 2: 18-cv-2744 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 J. FERNANDEZ, 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. Pending before the court is plaintiff’s motion for a “temporary stay of time” 19 to file objections to the December 2, 2020 findings and recommendations. (ECF No. 109.) The 20 undersigned construes plaintiff’s motion for a “temporary stay” as a motion for extension of time 21 to file objections. For the reasons stated herein, plaintiff’s motion is denied. 22 On December 2, 2020, the undersigned recommended that defendants’ summary judgment 23 motion be granted. (ECF No. 100.) On December 17, 2020, plaintiff filed his first motion for 24 extension of time to file objections. (ECF No. 101.) The grounds of this motion were that 25 plaintiff was separated from his inmate legal assistant, William Brown, due to COVID-19 26 restrictions. (Id.) On December 22, 2020, the undersigned granted plaintiff thirty days to file 27 objections. (ECF No. 102.) 28 //// 1 On January 27, 2020, plaintiff filed a second motion for extension of time to file 2 objections. (ECF No. 103.) The grounds of this motion were that plaintiff continued to be 3 separated from his inmate legal assistant, William Brown, due to COVID-19 restrictions. (Id.) 4 On February 3, 2020, the undersigned granted plaintiff thirty days to file his objections. (ECF 5 No. 105.) 6 On March 8, 2021, plaintiff filed his third motion for extension of time to file objections. 7 (ECF No. 107.) In this motion, plaintiff requested a sixty days extension of time to file 8 objections. (Id.) The grounds of this motion were that plaintiff continued to be separated from 9 his inmate legal assistant, William Brown, due to COVID-19 restrictions. (Id.) Plaintiff also 10 alleged that the law library at Deuel Vocational Institution (“DVI”) had been closed since August 11 2020. (Id.) On March 12, 2021, the undersigned granted plaintiff sixty days to file objections. 12 (ECF No. 108.) The undersigned also ordered that no further extensions of time would be 13 granted but for substantial cause. (Id.) 14 In the pending motion, plaintiff alleges that his inmate legal assistant, William Brown, 15 was granted early release and is no longer incarcerated, leaving plaintiff without legal assistance. 16 (ECF No. 109 at 5.) Plaintiff also alleges that on April 16, 2021, he was recommended for 17 transfer to the California Health Care Facility (“CHCF”) due to the upcoming closure of DVI. 18 (Id. at 4-5.) Plaintiff alleges that his transfer could take up to DVI’s closure date of September 19 2021. (Id. at 5.) Plaintiff requests that the undersigned order his objections due after his pending 20 transfer so that he may obtain inmate legal assistance following his transfer. (Id. at 3.) 21 Plaintiff has not shown good (or substantial) cause to indefinitely stay the resolution of 22 this action pending his transfer from DVI. While plaintiff alleges that he requires legal assistance 23 to prepare his objections, the pending motion does not allege that plaintiff is being denied law 24 library access. See Bounds v. Smith, 430 U.S. 817, 828 (1977) (the constitutional right of access 25 to the courts requires prison authorities to help inmate prepare and file “meaningful legal papers 26 by providing prisoners with adequate law libraries or adequate assistance from persons trained in 27 the law.”) Accordingly, plaintiff’s motion to stay this action, construed as a motion for extension 28 of time, is denied. Plaintiff’s objections are due within thirty days of the date of this order. No 1 | further extensions of time will be granted unless plaintiff demonstrates that he has been 2 | transferred during that time and denied access to his legal property. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s motion to stay this action (ECF No. 109), construed as a motion for an 5 extension of time, is denied; 6 2. Plaintiffs objections are due within thirty days of the date of this order; no further 7 extensions of will be granted unless plaintiff demonstrates that he has been transferred 8 during that time and denied access to his legal property. 9 || Dated: May 20, 2021 10 Frese Arn 11 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 12 13 El12744.den 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28