(PC) Sharpe v. Sherman

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ADAM SHARPE, No. 1:19-cv-00711-DAD-EPG (PC) 12 Plaintiff, ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED ANSWER 13 v. (ECF No. 48) C. CRYER, et al., ORDER GRANTING, IN PART, AND 15 Defendants. HOLDING IN ABEYANCE, IN PART, MOTION FOR EXTENSION OF TIME (ECF No. 52) On December 9, 2020, Defendants C. Cryer, S. Gates, J. Lewis and S. Smith (“Defendants”) filed a motion for leave to file an amended answer. (ECF No. 48). On December 24, 2020, Defendants filed a motion for summary judgment, as to Defendant Smith only, on the issue of exhaustion, and to stay discovery as to Defendant Smith. (ECF Nos. 50 & 51). On January 7, 2021, Plaintiff Adam Sharpe (“Plaintiff”), a state inmate proceeding pro se and in forma pauperis, filed a motion for extension of time, seeking extensions of his time to file a response to the motion for summary judgment and to file any motions to compel. (ECF No. 52).

I. MOTION FOR LEAVE TO FILE AN AMENDED ANSWER It appears that Plaintiff does not oppose Defendants’ motion for leave to file an amended answer, as his extension of time notes Defendants’ motion for summary judgment, which was filed after the motion for leave to file an amended answer. Moreover, Plaintiff’s motion for an extension of time was signed December 31, 2020, which was one day after Plaintiff’s deadline to oppose the motion for leave to amend. (ECF No. 52 at 2) (signing date); Eastern District of California Local Rule 230(l) (noting 21-day deadline to oppose any motions and “Failure of the responding party to file an opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion”).

7 Even if Plaintiff had not waived any objections, there appears to be good cause to grant the motion. “The court should freely give leave [to amend a pleading] when justice so requires.”

9 Fed. R. Civ. P. 15(a)(2). “[T]his policy is to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). “In determining whether leave to amend is appropriate, the district court considers the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.” Id. 13 Here, Defendants’ counsel’s declaration indicates that the amendment is required due to a mistake, not bad faith. (ECF No. 48-1). There is no undue delay because, according to the declaration, the amendment was sought as soon as the mistake was uncovered. (Id.). Plaintiff has not argued that he would be prejudiced as he does not oppose the motion. Finally, the Court does not find that amendments would be futile. Therefore, the Court will grant the motion.

18 II. MOTION FOR EXTENSION OF TIME 19 Plaintiff’s motion for an extension of time seeks an extension of time to oppose Defendants’ motion for summary judgment and seeks an extension of time to file motions to compel. (ECF No. 52). Plaintiff argues that he has no law library access and no access to lined paper or postage. Plaintiff further states his institution of confinement is under a lockdown due to inmate violence.

24 With respect to the extension of time to file a response to Defendants’ motion for summary judgment, Plaintiff requests an extension to March 6, 2021. The Court finds good cause to extend Plaintiff’s deadline to oppose Defendants’ motion for summary judgment and will accordingly grant the motion as to such request.

28 With respect to the extension of time to file a motion to compel, the Court notes that a | telephonic discovery and status conference is set for January 25, 2021. (See ECF No. 32). The | Court will hold Plaintiffs motion in abeyance as to such request and will consider that aspect of | Plaintiffs motion at the conference.!

I. ORDER 5 Accordingly, it is HEREBY ORDERED that: 6 1. Defendants’ motion for leave to amend (ECF No. 48) is GRANTED; 7 2. Defendants have leave to file their amended answer; 8 3. Plaintiff’s motion for an extension of time is GRANTED, IN PART; 9 4. Plaintiff shall respond to Defendants’ motion for summary judgment (ECF No. 50) 10 no later than March 6, 2021; and 11 5. Plaintiff's motion for an extension of time is otherwise HELD IN ABEYANCE for 12 consideration at the discovery and status conference set for January 25, 2021.

13 | IT IS ORDERED. is | Dated: _January 11, 2021 [see ey UNITED STATES MAGISTRATE JUDGE | The Court will also consider Defendants’ motion to stay discovery as to Defendant Smith (ECF No. 51) at the | telephonic discovery and status conference.