Gunn v. Tilton et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CASE NO. 1:08-cv-01038-LJO-GBC (PC)
ORDER REQUIRING DEFENDANTS TO FILE
NOTICE OF INTENT TO REFILE MOTION
FOR SUMMARY JUDGMENT
JAMES TILTON, et al.,
Doc. 41; Doc. 49
Plaintiff Kevin Gunn (“Plaintiff”) is a state prisoner proceeding in forma pauperis (“IFP”)
in this civil rights action pursuant to 42 U.S.C. § 1983. On March 6, 2009, Plaintiff filed his First
Amended Complaint. Doc. 14. On December 24, 2009, Plaintiff filed a motion for leave to file
an amended complaint (Doc. 28) pursuant to F ED . R. C IV . P. 15(a), and lodged his Second
Amended Complaint (Doc. 29). On May 19, 2010, Defendants filed a motion for summary
judgment. Doc. 41. On September 21, 2010, Judge Roll granted in part Plaintiff's motion to
amend. Doc. 49. In its order filed on September 21, 2010, the Judge Roll stated that
Defendants may amend or supplement their motion for summary judgment within thirty days
of the filing date of Plaintiff’s amended complaint or file a notice of their intent not to amend
or supplement. Doc. 49. After being granted an extension, Plaintiff filed an additional
amended complaint on November 29, 2010. Doc. 52. On December 7, 2010, Defendants
filed a motion to strike the amended complaint filed on November 29, 2010, as it did not
conform to the order filed on September 21, 2010. Doc. 54.
Subsequently, however, the case was transferred to this Court (Doc. 60) and on July
20, 2011, the Court issued findings and recommendations wherein the Court construed the
lodged second amended complaint filed on December 24, 2009, as the operative amended
complaint and recommended that Plaintiff’s third amended complaint filed on October 25,
2010, be stricken.
recommended that Defendants be given thirty days to amend or supplement their motion for
summary judgment or to file a notice of intent not to supplement. Doc. 66. After being
granted three extensions of time, On December 21, 2011, Plaintiff filed objections to the
Court’s findings and recommendations. Doc. 77. On December 22, 2011, the findings and
recommendations were adopted in full. Doc. 78. On January 10, 2012, Plaintiff filed notice
of appeal. Doc. 81. Because Plaintiff is attempting to appeal an order which is not a final
appealable order of the court, Plaintiff's filing of the notice of appeal does not deprive the court of
In its findings and recommendations, the Court also
Given the history of this action and the fact that the operative amended complaint was
filed after Defendants’ motion for summary judgment, the Court HEREBY ORDERS that:
within FIFTEEN (15) days of service of this order, Defendants’ attorney file a notice regarding
whether Defendants wish to withdraw and refile the motion for summary judgment to address the
operative amended complaint or file a notice of their intent to proceed on the Defendants’
current motion for summary judgment.
IT IS SO ORDERED.
January 17, 2012
UNITED STATES MAGISTRATE JUDGE
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