(PC) Harris v. Pongyang ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM JAMES HARRIS, No. 2:21-cv-00846-TLN-KJN 12 Plaintiff, 13 v. ORDER 14 CAPTIAN PONGYAN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 12, 2023, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. (ECF No. 50.) Plaintiff 23 filed objections to the findings and recommendations. (ECF No. 51.) This Court addresses 24 Plaintiff’s objections herein. 25 On October 21, 2022, Defendant filed a motion for summary judgment on the merits of 26 Plaintiff’s claims and on the grounds that Plaintiff failed to exhaust administrative remedies. 27 (ECF No. 48.) Plaintiff did not file an opposition to Defendant’s summary judgment motion. On 28 November 29, 2022, the magistrate judge granted Plaintiff thirty days to file an opposition. (ECF 1 No. 49.) The magistrate judge warned Plaintiff that failure to respond to the November 29, 2022 2 order would result in a recommendation of dismissal of this action. (Id.) Thirty days passed and 3 Plaintiff did not respond to the November 29, 2022 order. On January 12, 2022, the magistrate 4 judge recommended that this action be dismissed for Plaintiff’s failure to prosecute. (ECF No. 5 50.) 6 On January 30, 2023, Plaintiff filed objections to the January 12, 2023 findings and 7 recommendations. (ECF No. 51.) In his objections, Plaintiff states that it is impossible for him to 8 file an opposition to Defendant’s summary judgment motion because the COVID-19 pandemic 9 made it impossible for him to adequately complete discovery within the Court-ordered deadline. 10 (Id. at 1.) Plaintiff states that he does not concede that he failed to exhaust administrative 11 remedies. (Id. at 1-2.) Plaintiff states that he was not allowed “ample opportunity” to gather 12 evidence of his attempts to exhaust administrative remedies. (Id.) 13 Pursuant to the discovery and scheduling order filed March 28, 2022, the discovery 14 deadline was July 29, 2022. (ECF No. 41.) All requests for discovery pursuant to Federal Rules 15 of Civil Procedure 31, 33, 34 or 36 were to be served not later than sixty days prior to that date. 16 (Id.) 17 On July 1, 2022, Plaintiff filed a motion for a 90-days extension of time to conduct 18 discovery. (ECF No. 42.) In this motion, Plaintiff claimed that the COVID-19 pandemic crippled 19 his access to the courts. (Id.) Plaintiff claimed that he was on a modified program. (Id.) On 20 August 1, 2022, the magistrate judge denied Plaintiff’s motion for extension of time to conduct 21 discovery as not well supported. (ECF No. 43.) The magistrate judge found that Plaintiff failed 22 to state when the modified program was enacted. (Id.) The magistrate judge found that Plaintiff 23 failed to describe the conditions of the modified program and how they impacted his ability to 24 conduct discovery. (Id.) The magistrate judge also found that Plaintiff did not address his law 25 library access after the court issued the discovery and scheduling order on March 28, 2022. (Id.) 26 Plaintiff filed a motion for reconsideration of the August 1, 2022 order. (ECF No. 45.) 27 On September 27, 2022, the magistrate judge construed the motion for reconsideration as a 28 1 renewed motion for extension of time to conduct discovery.1 (ECF No. 47.) The magistrate 2 judge denied Plaintiff’s renewed motion for extension of time to conduct discovery because 3 Plaintiff failed to demonstrate that he acted diligently in conducting discovery. (Id.) After 4 reviewing the Daily Status Program Reports attached to Plaintiff’s motion, the magistrate judge 5 found that these documents failed to demonstrate Plaintiff’s inability to access the law library 6 during the relevant time period. (Id.) The magistrate judge also found that Plaintiff’s failure to 7 conduct discovery was more likely related to Plaintiff’s misunderstanding of the discovery 8 deadlines rather than restricted law library access. (Id.) 9 For the reasons discussed above, this Court finds that Plaintiff’s claim in his objections 10 that he could not oppose Defendant’s summary judgment motion due to an inability to conduct 11 discovery based on restrictions related to the COVID-19 pandemic is not well supported. To the 12 extent Plaintiff’s objections could be construed as a request to defer Defendant’s summary 13 judgment pursuant to Federal Rule of Civil Procedure 56(d), Plaintiff fails to identify the 14 “specific facts” he seeks and why those facts are essential to his opposition. See Stevens v. 15 Corelogic, Inc., 899 F.3d 666, 677–78 (9th Cir. 2018.) 16 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 17 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 18 Court finds the findings and recommendations to be supported by the record and by proper 19 analysis. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 1 Pursuant to the mailbox rule, Plaintiff filed the motion for reconsideration on August 19, 27 2022. (ECF No. 2 at 1 (date of Plaintiff’s signature on motion for reconsideration).) The magistrate judge noted that a motion for reconsideration would have been untimely as it was not 28 filed more than fourteen days after the August 1, 2022 order. (ECF No. 47 at 2 n.1.) 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and recommendations filed January 12, 2023, (ECF No. 50) are adopted 3 | in full; and 4 2. This action is DISMISSED without prejudice pursuant to Federal Rule of Civil 5 || Procedure 41(b). 6 | DATED: February 22, 2023 8 “ Mr / 9 Troy L. Nuhlep ] 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28