(PC) Carr v. California Department of Corrections & Rehabilitation et al, No. 2:2009cv00826 - Document 99 (E.D. Cal. 2011)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 2/3/2011 ORDERING that pltf's 88 motion for reconsideration is GRANTED; the 84 findings and recommendations are VACATED; and pltf's 89 , 92 motions for extensions of time are DENIED w/out prejudice. (Yin, K)

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(PC) Carr v. California Department of Corrections & Rehabilitation et al Doc. 99 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ARTHUR CARR, 11 12 13 14 Plaintiff, No. 2:09-cv-0826 GEB KJN P Defendants. ORDER vs. H. HER, et al., 15 16 / Plaintiff is a state prisoner proceeding without counsel in an action under 42 17 U.S.C. § 1983. On December 30, 2010, plaintiff filed a motion for reconsideration. Plaintiff 18 asks the undersigned to reconsider the late filing of his reply to defendants’ opposition to 19 plaintiff’s motion for injunctive relief. Plaintiff acknowledges receipt of this court’s Local Rule 20 230(l) notice issued November 30, 2010, that orders plaintiff’s reply due seven days after the 21 filing of the opposition. However, plaintiff states he “found arguable authority in his favor” for 22 filing the reply on December 20, 2010. 23 Defendants filed their opposition on December 3, 2010. Under Local Rule 230(l), 24 plaintiff’s reply was due December 10, 2010, although he would be permitted an additional three 25 days for mailing under Fed. R. Civ. P. 6. Under the mailbox rule, plaintiff’s reply would be 26 timely if he handed it to prison officials for mailing on December 13, 2010. See Houston v. 1 Dockets.Justia.com 1 Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers 2 it to prison authorities); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (holding that 3 “the Houston mailbox rule applies to § 1983 complaints filed by pro se prisoners”). 4 5 Instead, plaintiff handed the reply to prison officials for mailing on December 20, 2010, and the court received the reply for filing on December 23, 2010. 6 While this court is required to liberally construe pro se filings, the court is not 7 required to “liberally construe” adherence to court deadlines. Plaintiff concedes he was provided 8 notice of the seven day deadline. Rather than seek an extension of time, or clarification of the 9 notice from the court, plaintiff chose to look for “arguable authority” governing the deadline. 10 Plaintiff is admonished that court orders and briefing schedules are to be followed, even by 11 litigants proceeding without counsel. If plaintiff is unable to meet a court deadline, plaintiff must 12 seek relief from the court, not search for contrary authority. 13 In an abundance of caution, the court will vacate the December 17, 2010 findings 14 and recommendations, and the court will issue revised findings and recommendations after 15 reviewing plaintiff’s reply. Plaintiff is cautioned, however, that all future deadlines will be 16 strictly enforced. 17 18 In light of this order, plaintiff’s requests for extensions of time to file objections to the findings and recommendations are moot and will be denied without prejudice. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Plaintiff’s December 30, 2010 motion for reconsideration (dkt. no. 88) is 21 granted; 22 2. The December 17, 2010 findings and recommendations (dkt. no. 84) are 23 vacated; 24 //// 25 //// 26 //// 2 1 3. Plaintiff’s motions for extensions of time to file objections (dkt. nos. 89 & 92) 2 are denied without prejudice. 3 DATED: February 3, 2011 4 5 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 6 7 carr0826.vac 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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