Burgess v. Raya, et al.

Filing 13

ORDER DISREGARDING 12 Defendants' Motion to Dismiss signed by Magistrate Judge Jennifer L. Thurston on 12/28/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DWAYNE L. BURGESS,

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Case No. 1:11-cv-00921-LJO-JLT
ORDER DISREGARDING DEFENDANTS’
MOTION TO DISMISS

Plaintiff,
vs.

(Doc. 12).
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J. RAYA, et al.,
Defendants.

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Plaintiff Dwayne L. Burgess (“Plaintiff”) is a state prisoner proceeding pro se with a civil

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rights action pursuant to 42 U.S.C. § 1983. On December 27, 2012, Defendants filed a Motion to

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Dismiss Plaintiff’s First Amended Complaint. (Doc. 12). For the reasons described below,

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Defendants’ motion is DISREGARDED.

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Defendants removed Plaintiff’s case to this Court on June 6, 2011. (Doc. 1). Because

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Plaintiff’s initial complaint sought redress from governmental employees in a civil action, this

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Court was required to screen his complaint in order to identify cognizable claims. 28 U.S.C. §

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1915A(a)-(b). The Court’s October 17, 2012 screening order dismissed Plaintiff’s Complaint as

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to all Defendants because it failed to state any cognizable claims. (Doc. 8). The Court gave

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Plaintiff 21 days to amend his complaint and attempt to cure the deficiencies set forth in the

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October 17, 2012 screening order. (Doc. 8). Plaintiff timely filed his First Amended Complaint

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on December 10, 2012. (Doc. 11).

Defendants have filed their instant motion to dismiss
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Plaintiff’s FAC before the Court has had an opportunity to screen it for cognizable claims. Once

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the Court has determined whether Plaintiff has stated cognizable claims against any named

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Defendants, the Court will issue an order requiring Defendants to file a responsive pleading.

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Until that time, Defendants need not respond to the pleadings filed by Plaintiff.

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Accordingly, it is HEREBY ORDERED that Defendants’ Motion to Dismiss Plaintiff’s
First Amended Complaint (Doc. 12) is DISREGARDED.

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IT IS SO ORDERED.
Dated:

December 28, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

9j7khijed

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