Dasenbrock v. Kings County et al

Filing 228

ORDER DENYING 208 Motion for Summary Judgment Filed by Defendant Perez-Hernandez, with Leave to Amend; Deadline: June 16, 2017; Plaintiff's Opposition or Statement of Non-Opposition Due on or Before July 10, 2017; Defendant's Reply Due on or Before July 21, 2017 signed by Magistrate Judge Gary S. Austin on 5/4/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBIN DASENBROCK,

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Plaintiff,

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ORDER DENYING MOTION FOR
SUMMARY JUDGMENT FILED BY
DEFENDANT PEREZ-HERNANDEZ,
WITH LEAVE TO AMEND
(ECF No. 208.)

vs.
A. ENENMOH, et al.,

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1:11-cv-01884-DAD-GSA-PC

Defendants.

DEADLINE: June 16, 2017

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PLAINTIFF’S OPPOSITION OR
STATEMENT OF NONOPPOSITION DUE ON OR
BEFORE July 10, 2017

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DEFENDANT’S REPLY DUE ON
OR BEFORE July 21, 2017

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I.

BACKGROUND

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Robin Dasenbrock (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this

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action on November 14, 2011. (ECF No. 1.) On November 29, 2012, Plaintiff filed the First

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Amended Complaint.

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Amended Complaint filed on September 8, 2015, against defendants Dr. A. Enenmoh,

(ECF No. 16.)

This case now proceeds with Plaintiff’s Second

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Correctional Officer Perez-Hernandez,1 Nurse Page, and Nurse Adair, on Plaintiff’s claims for

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violation of the Eighth Amendment and related negligence. (ECF No. 140.)

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On October 21, 2016, defendant Perez-Hernandez (“Defendant”) filed a motion for

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summary judgment. (ECF No. 208.) On December 1, 2016, Plaintiff filed an opposition to the

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motion. (ECF Nos. 214-217.) On December 7, 2016, Defendant filed a reply to the opposition.

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(ECF No. 218.)

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II.

DEFENDANT’S MOTION

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Defendant’s motion for summary judgment is based in part on the allegations in the

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First Amended Complaint filed on November 29, 2012 (ECF No. 16).2 However, the Second

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Amended Complaint, filed on September 8, 2015, is now the operative complaint in this action.

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(ECF No. 140.) For this reason, Defendant’s motion for summary judgment shall be denied,

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with leave to amend. Plaintiff shall be granted time to file an opposition to the amended

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motion for summary judgment, and Defendant shall be granted time to file a reply to the

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opposition. As discussed in the court’s order of April 13, 2017, the court shall consider only

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one opposition and one reply. (ECF No. 223 at 2:3-15.) Local Rule 230(l).

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Defendant Perez-Hernandez’s motion for summary judgment, filed on

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December 21, 2016, is DENIED with leave to amend on or before June 16,

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2017;

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2.

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Plaintiff shall file an opposition, or a notice of non-opposition, to the amended
motion on or before July 10, 2017;

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Defendant’s reply to Plaintiff’s opposition, if any, shall be filed on or before
July 21, 2017; and

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Named in the complaint as Correctional Officer Perez.

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For example, Defendant cites the First Amended Complaint (ECF No. 16) as the source of
some of Defendant’s undisputed facts. (ECF No. 208-3 at 1-2 ¶¶2-5, 12-14.)
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4.

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The court shall consider only one opposition to the amended motion and one
reply to the opposition. Local Rule 230(l).

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IT IS SO ORDERED.
Dated:

May 4, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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