Gray v. Johnson et al

Filing 175

ORDER DENYING Plaintiff's 166 171 172 Motions as Premature signed by Magistrate Judge Gary S. Austin on 3/2/2017. (Sant Agata, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 1:13-cv-01473-DAD-GSA-PC DANA GRAY, ORDER DENYING PLAINTIFF’S MOTIONS AS PREMATURE Plaintiff, vs. (ECF Nos. 166, 171, 172.) ROMERO, et al., 15 Defendants. 16 Dana Gray (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 17 This case now proceeds on Plaintiff’s Fourth Amended 18 pursuant to 42 U.S.C. § 1983. 19 Complaint filed on September 21, 2015, against defendants Dr. V. Romero, Dr. A. Comelli, 20 FNP N. Loadholt, Dr. C. Rebel, John Ziomek, DPM, and Dr. V. Mundunuri, on Plaintiff’s 21 medical claim under the Eighth Amendment. (ECF No. 45.) This case is now in the discovery 22 phase. 23 On April 29, 2016, defendant Rebel filed a motion to dismiss the claims against him as 24 barred by the statute of limitations. (ECF No. 57.) On August 31, 2016, defendants 25 Mundunuri and Ziomek filed a motion for judgment on the pleadings based on Plaintiff’s 26 failure to exhaust administrative remedies. (ECF No. 122.) These two motions are pending. 27 On February 9, 2017, February 16, 2017, and February 22, 2017, Plaintiff filed a motion 28 for extension of time to amend the complaint, motion to supplement the complaint, and motion 1 1 to amend and supplement the complaint, respectively. (ECF Nos. 166, 171, 172.) On February 2 28, 2017, Defendant Rebel filed an opposition to the motion to amend and supplement the 3 complaint. (ECF No. 174.) Defendant Rebel argues that to allow Plaintiff to file a Fifth 4 Amended Complaint at this stage of the proceedings would be prejudicial to him because it 5 would render moot his pending motion to dismiss. 6 Defendant Rebel’s argument has merit. Plaintiff’s motions are premature at this stage 7 of the proceedings. Until a final ruling is made on defendant Rebel’s motion to dismiss and 8 defendants Mundunuri and Ziomek’s motion for judgment on the pleadings, Plaintiff may not 9 amend or supplement the complaint. 10 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for extension of time 11 to amend the complaint, motion to supplement the complaint, and motion to amend and 12 supplement the complaint, filed on February 9, 2017, February 16, 2017, and February 22, 13 2017, respectively, are DENIED as premature. 14 15 16 17 IT IS SO ORDERED. Dated: March 2, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?