Ahdom v. Lopez et al

Filing 91

ORDER DENYING Defendant Ashby's 79 Motion to Dismiss Second Amended Complaint as MOOT signed by District Judge Anthony W. Ishii on 11/19/2013. (Sant Agata, S)

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EASTERN DISTRICT OF CALIFORNIA

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BILAL AHDOM,

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Plaintiff,
v.
S. LOPEZ, et al.,
Defendants.

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1:09-cv-1874-AWI-BAM (PC)
ORDER DENYING DEFENDANT
ASHBY’S MOTION TO DIMSISS SECOND
AMENDED COMPLAINT AS MOOT
(ECF No. 79)

Plaintiff Bilal Ahdom (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. On March 31, 2012, the

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Court screened Plaintiff’s first amended complaint pursuant to 28 U.S.C. § 1915A, and found

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that it stated an Eighth Amendment claim against Defendants Araich, Chen, Shittu, Ashby, S.

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Lopez, Spaeth, and Schaefer for deliberate indifference to his medical needs. (ECF No. 31.)

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Following service of the first amended complaint, Defendants Chen, Lopez, Schaefer and Spaeth

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filed an answer to the complaint on July 19, 2012, and the Court opened discovery in this matter

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on July 23, 2012. (ECF Nos. 37, 39.) Defendants Shittu and Araich also filed an answer to the

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first amended complaint. (ECF No. 54.)

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On November 8, 2012, Defendant Ashby filed a motion to dismiss for failure to state a

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claim. (ECF No. 53.) On June 26, 2013, the Court granted Defendant Ashby’s motion to

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dismiss and granted Plaintiff leave to amend his claim for deliberate indifference in violation of

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the Eighth Amendment against Defendant Ashby. (ECF No. 74.)

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On August 29, 2013, Plaintiff filed his second amended complaint, which named

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Defendant Ashby as the sole defendant. (ECF No. 77.) As Plaintiff only named Defendant

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Ashby in his second amended complaint, it was unclear whether Plaintiff understood that he

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could continue to pursue his claims against all defendants following the motion to dismiss or

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whether he intended to proceed in this action solely against Defendant Ashby. Accordingly, on

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September 3, 2013, the Court directed Plaintiff to inform the Court if (1) he intended to proceed

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only against Defendant Ashby; or (2) he intended to proceed against Defendants Araich, Chen,

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Shittu, S. Lopez, Spaeth and Schaefer, along with Defendant Ashby, for deliberate indifference

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to his medical needs and he required additional time to file a third amended complaint. (ECF

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No. 78.)
On September 9, 2013, Defendant Ashby filed a motion to dismiss Plaintiff’s second
amended complaint, with prejudice, for failure to state a cognizable claim. (ECF No. 79.)
On September 20, 2013, Plaintiff informed the Court that he intended to proceed against

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Defendants Araich, Chen, Shittu, S. Lopez, Spaeth and Schaefer, along with Defendant Ashby.

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Plaintiff therefore requested a forty-five day extension of time to November 1, 2013, to file a

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third amended complaint. (ECF No. 81.) On September 23, 2013, the Court granted Plaintiff an

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extension of time to November 1, 2013, to file a third amended complaint. (ECF No. 82.) On

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November 1, 2013, at Plaintiff’s request, the Court granted Plaintiff a brief extension of time to

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November 15, 2013, to file his third amended complaint. (ECF No. 87.) On November 18,

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2013, Plaintiff filed his third amended complaint date November 14, 2013. (ECF No. 90.)

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Given Plaintiff’s filing of a third amended complaint, Defendant Ashby’s motion to

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dismiss the second amended complaint is DENIED as moot. Defendant Ashby is not precluded

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from filing a motion to dismiss any claims against him in the third amended complaint.

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IT IS SO ORDERED.

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Dated: November 19, 2013

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SENIOR DISTRICT JUDGE

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