(PC) Willis v. United States ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENTRELL WILLIS, Case No. 1:19-cv-00761-BAM (PC) 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE 13 v. DISMISSED FOR FAILURE TO PROSECUTE 14 UNITED STATES OF AMERICA, (ECF No. 51) 15 Defendant. ORDER DIRECTING DEFENDANT TO RE- SERVE MOTION FOR SUMMARY 16 JUDGMENT ON PLAINTIFF AND RESPOND TO PLAINTIFF’S MOTION TO 17 POSTPONE CONSIDERATION OF DEFENDANT’S MOTION FOR SUMMARY 18 JUDGMENT 19 TWENTY-ONE (21) DAY DEADLINE 20 21 Plaintiff Kentrell Willis (“Plaintiff”) is a federal prisoner proceeding pro se and in forma 22 pauperis in this civil rights action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 23 §§ 2401, et seq. Plaintiff seeks monetary damages from Defendant United States of America for 24 alleged sexual assault and negligence arising out of events which allegedly took place at the 25 United States Penitentiary, Atwater. All parties have consented to Magistrate Judge jurisdiction. 26 On February 28, 2022, Defendant filed a motion for summary judgment for failure to 27 exhaust administrative remedies and/or timeliness. (ECF No. 50.) On March 1, 2022, the Court 28 issued a second informational order providing Plaintiff with notice of the requirements for 1 opposing a motion for summary judgment. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand 2 v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th 3 Cir. 1988). (ECF No. 52.) Pursuant to Local Rule 230(l) and Federal Rule of Civil Procedure 4 6(d), Plaintiff’s opposition or statement of non-opposition was due on or before March 25, 2022. 5 After Plaintiff failed to file an opposition to the motion for summary judgment, on April 6 11, 2022, the Court issued an order for Plaintiff to show cause within twenty-one days why this 7 action should not be dismissed for failure to prosecute. (ECF No. 56.) 8 Also on April 11, 2022, Plaintiff filed a motion to postpone consideration of Defendant’s 9 motion for summary judgment, dated April 6, 2022, which appears to have crossed in the mail 10 with the Court’s order to show cause. (ECF No. 57.) Plaintiff states that he did not receive the 11 Court’s March 1, 2022, second informational order until April 6, 2022, and as of April 6, 2022, he 12 has not received a copy of Defendant’s summary judgment motion. Plaintiff also argues that 13 Defendant has not produced relevant discovery relating to the exhaustion of Plaintiff’s 14 administrative remedies, and to the extent Defendant is relying upon transcripts from the 15 February 3, 2022, deposition, Plaintiff has not had the opportunity to read, correct, and sign the 16 transcripts pursuant to Federal Rule of Civil Procedure 30(e)(1).1 17 Having considered the motion, it appears Plaintiff’s motion crossed in the mail with the 18 Court’s order to show cause, and the Court finds good cause to discharge the April 11, 2022 order 19 to show cause. However, the Court also finds it appropriate for Defendant to file a response 20 addressing the issues raised by Plaintiff before addressing the substance of the motion. 21 Accordingly, IT IS HEREBY ORDERED as follows: 22 1. The April 11, 2022 order to show cause, (ECF No. 56), is DISCHARGED; 23 2. Within twenty-one (21) days of service of this order, Defendant is directed to: 24 a. Re-serve a copy of the February 28, 2022 motion for summary judgment, 25 including all attachments, on Plaintiff at his current address of record; and 26 1 The Court notes, without deciding the issue, that the rule provides that the deponent will have 27 the opportunity to review the transcript “[o]n request by the deponent or a party before the deposition is completed[.]” Fed. R. Civ. P. 30(e)(1). Plaintiff has not indicated in his motion 28 whether he requested a review during the deposition. 1 b. File a response to Plaintiff’s April 11, 2022 motion to postpone consideration of 2 Defendant’s motion for summary judgment, (ECF No. 57); and 3 3. The deadline for Plaintiff to file his opposition to the motion for summary judgment will 4 be reset following resolution of the motion to postpone. 5 IT IS SO ORDERED. 6 7 Dated: April 13, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28