(PC) Barrios v. Torres

Opinion

2 3

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

10 11 FRANKLIN BARRIOS, Case No. 1:20-cv-01234-ADA-CDB (PC)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S EX PARTE MOTION FOR EXTENSION OF 13 v. TIME TO RESPOND TO MOTION TO DISMISS 14 TORRES, et al., (Doc. 33) 15 Defendants. ORDER DISCHARGING ORDER TO 16 SHOW CAUSE

17 (Doc. 34)

18 THIRTY (30) DAY DEADLINE 19 20 Plaintiff Franklin Barrios is a state prisoner proceeding pro se and in forma pauperis in this 21 civil rights action filed under 42 U.S.C. § 1983. 22 On June 29, 2023, Defendants Diaz and Torres filed a motion to dismiss Plaintiff’s first 23 amended complaint. (Doc. 33.) After Plaintiff failed to file a timely response in opposition or 24 statement of non-opposition, on July 26, 2023, the Court entered an order requiring Plaintiff to 25 show cause, within fourteen days, why this action should not be dismissed for failure to comply 26 with court orders. (Doc. 34.) Alternatively, within the same period, Plaintiff could file an 27 opposition or a statement of non-opposition to Defendants’ motion to dismiss. (Id. at 2.) The 28 Court advised Plaintiff: “Failure to comply with this order will result in a recommendation ee enn eee I I II DS DEINE EI II IIE IIE OE IGE IES

1 | that this action be dismissed.” (/d.) (alteration in original). 2 On July 12, 2023,' Plaintiff filed the instant ex parte application for a thirty-day 3 | extension of time to file an opposition to Defendants’ motion to dismiss.” (Doc. 35.) Plaintiff 4 | asserts he has been unable to prepare a timely response due to his limited access to the law 5 | library. (Doc. 35.) The Court finds that Plaintiff has demonstrated good cause for the requested 6 | extension of time. 7 The Court further finds Plaintiffs motion for an extension of time was timely, and the 8 || time to response to the order to show cause has not expired. Therefore, the order to show cause is 9 | discharged, and Plaintiff is not required to respond to the order to show cause. 10 Accordingly, it is hereby ORDERED: 11 1. The order to show cause (Doc. 34) issued on July 26, 2023, is DISCHARGED; 12 2. Plaintiff's application for an extension of time (Doc. 35) is GRANTED nunc pro 13 tunc; 14 3. Within thirty (30) days from the date of service of this Order, Plaintiff shall file 15 a response in opposition to Defendants’ motion to dismiss or a notice of non- 16 opposition. 17 | If Plaintiff fails to file a timely response to Defendants’ motion to dismiss, the Court will 18 | deem the motion unopposed and consider the motion without Plaintiff’s input. 19 | IT IS SO ORDERED. 20 DRX Dated: _ August 9, 2023 21 UNITED STATES MAGISTRATE JUDGE _—_— ' Under the prison mailbox rule, a pleading filed by a pro se prisoner is deemed filed as of the date 23 | the prisoner delivered it to the prison authorities for mailing to the court clerk. See Houston v. Lack, 487 U.S. 266, 270 (1988); Douglas v. Noelle, 567 F.3d 1103, 1108—09 (9th Cir. 2009) (mailbox rule articulated 24 | in Houston applies to civil rights actions). The Clerk of Court received and docketed Plaintiff’s pleading on August 4, 2023. (See Doc. 35.) Therefore, Plaintiff filed the instant motion before receiving the Court’s 25 || order to show cause; conversely, the Court entered the order to show cause before receiving the instant 06 motion for an extension of time. (See Docs. 34, 35.) > Plaintiff has calculated the original deadline to respond to the motion to dismiss as July 24, 2023, 27 || and thus seeks a thirty-day extension to August 23, 2023. (Doc. 35.) However, the Court’s order to show cause entered on July 26, 2023, afforded Plaintiff fourteen days—or by August 9, 2023—to respond to the 28 || motion. Therefore, the Court grants Plaintiff thirty days from the date of service of this Order to respond to Defendants’ motion to dismiss.