United States District Court, D. Kansas
MEMORANDUM AND ORDER
HONORABLE J. THOMAS MARTEN, UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiff Anthony
Jefferson's Motion for Additional Time (Dkt. 70)
requesting additional time to file a response to the
court's previous order to show cause. This is
plaintiff's third request for an extension of time based
upon his representation that he has limited access to his
prison facility's law library.
court entered an order to show cause on August 24, 2018 (Dkt.
44) because plaintiff had not filed a timely response to a
motion to dismiss plaintiff's complaint filed by
defendants Aramark Correctional Services, LLC, Paul Church,
Julie Dockendorff, and Rabbi M. Fellig on July 20, 2018.
(Dkt. 41). The order referenced Local Rule 7.4(b), which
provides that absent a showing of excusable neglect, a party
who does not file a timely response brief waives the right to
later file such a brief and the court may decide the motion
as unopposed. D. Kan. Local Rule 7.4(b). The rule further
indicates that the court will generally grant an unopposed
motion without further notice. Id. Given
plaintiff's failure to respond to the July 20, 2018
motion to dismiss, plaintiff was directed to show cause on or
before September 7, 2018 why the motion to dismiss should not
be granted as unopposed, and to file any response to the
motion to dismiss on the same date. The court's order
indicated “[i]f Plaintiff fails to respond to this
order, or to file a response as directed, the Court will
consider Defendants' motion as unopposed as described in
D. Kan. Rule 7.4(b).” (Dkt. 44).
did not file a response to the order to show cause by
September 7, 2018, nor did he file a response to
defendants' motion to dismiss. Instead, plaintiff filed a
motion for a 30-day extension of time to respond on September
4, 2018. (Dkt. 45). That order was granted and plaintiff was
instructed to file his response to the show cause order and
any response to the motion to dismiss by October 5, 2018.
October 3, 2018, plaintiff filed a motion requesting a 60-day
extension of time to respond to the order to show cause.
(Dkt. 56). That request was granted on October 10, 2018 (Dkt.
63) with the cautionary note to plaintiff that this court was
not likely to grant further extensions of time to respond
absent extraordinary circumstances. The court is not
satisfied that plaintiff's recent motion demonstrates
extraordinary circumstances that warrant further extensions
of time to respond.
motion to dismiss has been pending since July 20, 2018, and
defendants oppose plaintiff's most recent request for an
extension to respond. (Dkt. 71). Since defendants' motion
to dismiss was filed in July plaintiff has successfully filed
three motions for extensions of time, along with a motion to
appoint counsel (Dkt. 57) and five “affidavits of
truth” (Dkts. 58, 59, 60, 61, and 62) in support of his
claims. From the record, it appears that although plaintiff
represents that he has limited access to the law library, he
has not had trouble filing documents with this court.
Plaintiff simply has not filed the two documents that he was
initially directed to file by September 7, 2018 and he offers
no assurance to the court that he will not continue to
request further extensions. Even assuming no further
extensions, if plaintiff's request is granted now he will
have until mid-January 2019 to respond to the court's
original order. Allowing for a reply to be filed and time for
the court to consider the arguments, that represents a
substantial and prejudicial delay to defendants' right to
have their motion to dismiss heard and determined in a timely
court's opinion, plaintiff's unsupported
representation that he has limited access to the prison law
library is not the type of “extraordinary
circumstance” that would excuse his repeated failure to
respond to the court's show cause order. In the amount of
time plaintiff has devoted to other filings in this matter he
could have prepared at least a brief memorandum to the court
explaining why the court should not consider defendants'
motion to dismiss unopposed despite his failure to file a
true that plaintiff's pleadings are to be held to less
stringent standards because he is a prisoner proceeding pro
se. See Haines v. Kerner, 404 U.S. 519, 520-21, 92
S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). In this instance,
however, plaintiff has given the court nothing to consider
despite having been offered several opportunities to do so.
Plaintiff's request for additional time to file his
response to the court's order to show cause and his brief
in response to the defendants' motion to dismiss is
therefore DENIED. Following the directive of
the court's August 24, 2018 order to show cause (Dkt. 44)
and Local Rule 7.4(b), the court deems the Motion to Dismiss
filed by defendants Aramark Correctional Services, LLC, Paul
Church, Julie Dockendorff, and Rabbi M. Fellig (Dkt. 41) and
corresponding memorandum in support (Dkt. 42) to be
unopposed. Because defendants' motion is unopposed, the
Motion to Dismiss (Dkt. 41) is GRANTED.
Judgment shall be entered in favor of and this matter closed
as to defendants Aramark Correctional Services, LLC, Paul
Church, Julie Dockendorff, and Rabbi M. Fellig.