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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KEVIN GUNN, 10 11 12 13 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. / 14 15 Plaintiff Kevin Gunn (“Plaintiff”) is a state prisoner proceeding in forma pauperis (“IFP”) 16 in this civil rights action pursuant to 42 U.S.C. § 1983. On March 6, 2009, Plaintiff filed his First 17 Amended Complaint. Doc. 14. On December 24, 2009, Plaintiff filed a motion for leave to file 18 an amended complaint (Doc. 28) pursuant to F ED . R. C IV . P. 15(a), and lodged his Second 19 Amended Complaint (Doc. 29). On May 19, 2010, Defendants filed a motion for summary 20 judgment. Doc. 41. On September 21, 2010, Judge Roll granted in part Plaintiff's motion to 21 amend. Doc. 49. In its order filed on September 21, 2010, the Judge Roll stated that 22 Defendants may amend or supplement their motion for summary judgment within thirty days 23 of the filing date of Plaintiff’s amended complaint or file a notice of their intent not to amend 24 or supplement. Doc. 49. After being granted an extension, Plaintiff filed an additional 25 amended complaint on November 29, 2010. Doc. 52. On December 7, 2010, Defendants 26 filed a motion to strike the amended complaint filed on November 29, 2010, as it did not 27 conform to the order filed on September 21, 2010. Doc. 54. 28 Subsequently, however, the case was transferred to this Court (Doc. 60) and on July 1 1 20, 2011, the Court issued findings and recommendations wherein the Court construed the 2 lodged second amended complaint filed on December 24, 2009, as the operative amended 3 complaint and recommended that Plaintiff’s third amended complaint filed on October 25, 4 2010, be stricken. 5 recommended that Defendants be given thirty days to amend or supplement their motion for 6 summary judgment or to file a notice of intent not to supplement. Doc. 66. After being 7 granted three extensions of time, On December 21, 2011, Plaintiff filed objections to the 8 Court’s findings and recommendations. Doc. 77. On December 22, 2011, the findings and 9 recommendations were adopted in full. Doc. 78. On January 10, 2012, Plaintiff filed notice 10 of appeal. Doc. 81. Because Plaintiff is attempting to appeal an order which is not a final 11 appealable order of the court, Plaintiff's filing of the notice of appeal does not deprive the court of 12 jurisdiction. Doc. 66. In its findings and recommendations, the Court also 13 Given the history of this action and the fact that the operative amended complaint was 14 filed after Defendants’ motion for summary judgment, the Court HEREBY ORDERS that: 15 within FIFTEEN (15) days of service of this order, Defendants’ attorney file a notice regarding 16 whether Defendants wish to withdraw and refile the motion for summary judgment to address the 17 operative amended complaint or file a notice of their intent to proceed on the Defendants’ 18 current motion for summary judgment. 19 20 IT IS SO ORDERED. 21 22 Dated: 0jh02o January 17, 2012 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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