Gunn v. Tilton et al

Filing 84

ORDER Requiring Defendants to File Notice of Intent to Refile Motion for Summary Judgment, signed by Magistrate Judge Gerald B. Cohn on 1/17/12. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEVIN GUNN,

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CASE NO. 1:08-cv-01038-LJO-GBC (PC)
Plaintiff,

ORDER REQUIRING DEFENDANTS TO FILE
NOTICE OF INTENT TO REFILE MOTION
FOR SUMMARY JUDGMENT

v.
JAMES TILTON, et al.,

Doc. 41; Doc. 49

Defendants.
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Plaintiff Kevin Gunn (“Plaintiff”) is a state prisoner proceeding in forma pauperis (“IFP”)

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in this civil rights action pursuant to 42 U.S.C. § 1983. On March 6, 2009, Plaintiff filed his First

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Amended Complaint. Doc. 14. On December 24, 2009, Plaintiff filed a motion for leave to file

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an amended complaint (Doc. 28) pursuant to F ED . R. C IV . P. 15(a), and lodged his Second

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Amended Complaint (Doc. 29). On May 19, 2010, Defendants filed a motion for summary

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judgment. Doc. 41. On September 21, 2010, Judge Roll granted in part Plaintiff's motion to

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amend. Doc. 49. In its order filed on September 21, 2010, the Judge Roll stated that

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Defendants may amend or supplement their motion for summary judgment within thirty days

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of the filing date of Plaintiff’s amended complaint or file a notice of their intent not to amend

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or supplement. Doc. 49. After being granted an extension, Plaintiff filed an additional

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amended complaint on November 29, 2010. Doc. 52. On December 7, 2010, Defendants

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filed a motion to strike the amended complaint filed on November 29, 2010, as it did not

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conform to the order filed on September 21, 2010. Doc. 54.

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Subsequently, however, the case was transferred to this Court (Doc. 60) and on July
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20, 2011, the Court issued findings and recommendations wherein the Court construed the

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lodged second amended complaint filed on December 24, 2009, as the operative amended

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complaint and recommended that Plaintiff’s third amended complaint filed on October 25,

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2010, be stricken.

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recommended that Defendants be given thirty days to amend or supplement their motion for

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summary judgment or to file a notice of intent not to supplement. Doc. 66. After being

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granted three extensions of time, On December 21, 2011, Plaintiff filed objections to the

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Court’s findings and recommendations. Doc. 77. On December 22, 2011, the findings and

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recommendations were adopted in full. Doc. 78. On January 10, 2012, Plaintiff filed notice

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of appeal. Doc. 81. Because Plaintiff is attempting to appeal an order which is not a final

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appealable order of the court, Plaintiff's filing of the notice of appeal does not deprive the court of

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jurisdiction.

Doc. 66.

In its findings and recommendations, the Court also

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Given the history of this action and the fact that the operative amended complaint was

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filed after Defendants’ motion for summary judgment, the Court HEREBY ORDERS that:

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within FIFTEEN (15) days of service of this order, Defendants’ attorney file a notice regarding

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whether Defendants wish to withdraw and refile the motion for summary judgment to address the

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operative amended complaint or file a notice of their intent to proceed on the Defendants’

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current motion for summary judgment.

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IT IS SO ORDERED.

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Dated:
0jh02o

January 17, 2012
UNITED STATES MAGISTRATE JUDGE

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