Fields v. Rosenthal

Filing 18

ORDER DENYING AS MOOT 12 Motion to Dismiss and 14 Motion for Extension of Time, signed by Magistrate Judge Gary S. Austin on 08/24/2012. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN FIELDS,

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1:10-cv-01764-GSA-PC

Plaintiff,

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vs.

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ORDER DENYING DEFENDANT'S MOTION
TO DISMISS AND PLAINTIFF’S MOTION
FOR EXTENSION OF TIME AS MOOT
(Docs. 12, 13.)

R. ROSENTHAL,

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Defendant.
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Kevin Fields (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by civil complaint at the Kings County

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Superior Court on August 11, 2010 (Case #10-C0309). On September 23, 2010, defendant

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Rosenthal (“Defendant”) removed the case to federal court by filing a Notice of Removal of Action

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pursuant to 28 U.S.C. § 1441(b). (Doc. 1.) On October 7, 2010, Plaintiff filed the First Amended

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Complaint. (Doc. 5.) The Court screened the First Amended Complaint pursuant to 28 U.S.C. §

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1915A and entered an order on May 21, 2012, giving Plaintiff two options, (1) to file a Second

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Amended Complaint, or (2) to notify the Court of his willingness to proceed on the claims found

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cognizable by the Court. (Doc. 9.) On May 29, 2012, Plaintiff filed written notice that he was

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willing to proceed on the claims found cognizable by the Court. (Doc. 11.) On June 20, 2012,

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Defendant filed a motion to dismiss the complaint for failure to state a claim. (Doc. 12.)
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On July 5, 2012, Plaintiff filed a motion for reconsideration of the Court’s screening order.

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(Doc. 13.) On July 26, 2012, the Court entered an order denying Plaintiff’s motion for

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reconsideration and requiring him to either file a Second Amended Complaint or notify the court of

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his willingness to proceed with the First Amended Complaint on the claims found cognizable by the

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Court. (Doc. 16.) On August 22, 2012, Plaintiff filed a Second Amended Complaint. (Doc. 17.)

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In light of the fact that Plaintiff has filed a Second Amended Complaint, Defendant’s pending

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motion to dismiss the First Amended Complaint, filed on June 20, 2012, is moot. Any further

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motion to dismiss must be a new motion complete in itself without reference to the prior motion.

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Further, Plaintiff’s motion for extension of time to respond to Defendant’s motion to dismiss, filed

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on July 12, 2012, is also moot.

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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

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Defendant’s motion to dismiss, filed on June 20, 2012, is DENIED as moot; and

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2.

Plaintiff’s motion for extension of time, filed on July 12, 2012, is DENIED as moot.

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IT IS SO ORDERED.
Dated:
6i0kij

August 24, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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