Gunn v. Tilton et al

Filing 90

ORDER Requiring Plaintiff to File Opposition to Defendants' 41 42 Motion for Summary Judgment signed by Magistrate Judge Gerald B. Cohn on 02/02/2012. Opposition due by 3/5/2012. (Flores, E)

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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 PLAINTIFF TO FILE
OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT

v.
JAMES TILTON, et al.,

Doc. 41; Doc. 42
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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 an

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amended complaint (Doc. 28) pursuant to FED. R. CIV. P. 15(a), and lodged his Second Amended

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Complaint (Doc. 29). On May 19, 2010, Defendants filed a motion for summary judgment. Doc. 41;

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Doc. 42. On September 21, 2010, Judge Roll granted in part Plaintiff's motion to amend. Doc. 49.

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In the order filed on September 21, 2010, the Judge Roll stated that Defendants may amend or

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supplement their motion for summary judgment within thirty days of the filing date of Plaintiff’s

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amended complaint or file a notice of their intent not to amend or supplement. Doc. 49.

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After being granted an extension, Plaintiff filed an additional amended complaint on

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November 29, 2010. Doc. 52. On December 7, 2010, Defendants filed a motion to strike the

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amended complaint filed on November 29, 2010, as it did not conform to the order filed on

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September 21, 2010. Doc. 54. Subsequently, however, the case was transferred to this Court (Doc.

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60) and on July 20, 2011, the Court issued findings and recommendations wherein the Court
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construed the lodged second amended complaint filed on December 24, 2009, as the operative

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

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2010, be stricken. Doc. 66. In its findings and recommendations, the Court also recommended that

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Defendants be given thirty days to amend or supplement their motion for summary judgment or to

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file a notice of intent not to supplement. Doc. 66. After three extensions of time, On December 21,

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2011, Plaintiff filed objections to the Court’s findings and recommendations. Doc. 77. On

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December 22, 2011, the findings and recommendations were adopted in full. Doc. 78.

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On January 10, 2012, Plaintiff filed notice of appeal. Doc. 81. Because Plaintiff is

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attempting to appeal an order which is not a final appealable order of the court, Plaintiff's filing of

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the notice of appeal does not deprive the court of jurisdiction. On January 17, 2012, the Court filed

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an order requiring Defendants to give notice of their intent to resubmit a motion for summary

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judgement or give notice of their intent to proceed on the current motion for summary judgment.

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Doc. 86. On February 1, 2012, Defendants filed notice of their intent to proceed on the current

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motion for summary judgment filed on May 19, 2010. Doc. 41; Doc. 42.

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Based on the foregoing, the Court HEREBY ORDERS: that within thirty (30) days of service

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of this order, Plaintiff shall file an opposition to Defendants’ motion for summary judgement filed

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on May 19, 2010. Doc. 41; 42.

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IT IS SO ORDERED.

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Dated:
0jh02o

February 2, 2012
UNITED STATES MAGISTRATE JUDGE

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