Felton v. Lopez, et al.

Filing 70

ORDER GRANTING 69 Motion for Screening Order; ORDER GRANTING Extension of Time to File Response to First Amended Complaint, signed by Magistrate Judge Gary S. Austin on 4/6/2015. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KELVIN FELTON, 12 Plaintiff, 13 14 ORDER GRANTING MOTION FOR SCREENING ORDER vs. J. LOPEZ, et al., 15 Defendants. ORDER GRANTING EXTENSION OF TIME TO FILE RESPONSE TO FIRST AMENDED COMPLAINT (Doc. 69.) 16 17 1:12-cv-01066-AWI-GSA-PC I. BACKGROUND 18 Kelvin Felton (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 20 commencing this action on June 29, 2012. (Doc. 1.) The court screened the Complaint under 21 28 U.S.C. § 1915A and issued an order on February 13, 2013, finding that Plaintiff stated 22 cognizable claims for use of excessive force against defendants Correctional Officer (C/O) J. 23 Lopez and C/O S. Harrison (“Defendants”). (Doc. 11.) On April 19, 2013, with leave of court, 24 Plaintiff filed a Supplemental Complaint. (Doc. 22.) 25 On May 2, 2014, defendant Lopez filed a motion to dismiss the Supplemental 26 Complaint for failure to state a claim, and defendant Harrison filed an Answer. (Docs. 38, 39.) 27 On August 14, 2014, defendant Lopez filed a motion for summary judgment as to the 28 Supplemental Complaint, based on exhaustion. (Doc. 50.) On March 4, 2015, the court denied 1 1 defendant Lopez’s motion for summary judgment, and on March 5, 2015, the court denied 2 defendant Lopez’s motion to dismiss. (Docs. 66, 67.) Plaintiff was granted leave to file a First 3 Amended Complaint, and Defendants were ordered to file an Answer within thirty days of the 4 date the First Amended Complaint was filed. (Doc. 67.) On March 5, 2015, Plaintiff filed the 5 First Amended Complaint. (Doc. 68.) 6 On April 3, 2015, Defendants filed a motion requesting the court to screen Plaintiff=s 7 First Amended Complaint under 28 U.S.C. ' 1915A and grant Defendants an extension of time 8 to file a responsive pleading. (Doc.69.) In the alternative, Defendants request the court to 9 dismiss the First Amended Complaint for failure to state a claim. (Id.) 10 II. DEFENDANTS’ MOTION FOR SCREENING AND EXTENSION OF TIME 11 Defendants inform the court that it does not appear that the court screened the First 12 Amended Complaint under 28 U.S.C. § 1915A. Defendants request the court to screen the 13 First Amended Complaint and grant Defendants an extension of time in which to file a 14 responsive pleading. 15 Defendants are correct that the court is required to screen complaints in civil actions in 16 which a prisoner seeks redress from a governmental entity or officer or employee of a 17 governmental entity. 28 U.S.C. ' 1915A(a). Plaintiff=s First Amended Complaint alleges that 18 Defendants, employees of the California Department of Corrections and Rehabilitation 19 (CDCR) at the California Substance Abuse Treatment Facility and State Prison in Corcoran, 20 California, violated his rights under the United States Constitution. Because Plaintiff is a 21 prisoner and Defendants were employees of the CDCR when the alleged events occurred, the 22 court is required to screen the First Amended Complaint. Therefore, Defendants' motion for a 23 screening order shall be granted. In addition, good cause appearing, the motion for extension 24 of time shall also be granted. 25 III. CONCLUSION 26 Based on the foregoing, IT IS HEREBY ORDERED that: 27 1. 28 Defendants' motion for the court to screen the First Amended Complaint is GRANTED, and the court shall issue a screening order in due time; and 2 1 2. Good cause appearing, Defendants are GRANTED an extension of time until 2 thirty days from the date of service of the court's screening order, in which to 3 file a response to the First Amended Complaint. 4 5 6 7 IT IS SO ORDERED. Dated: April 6, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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