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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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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.,

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Defendants.

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Dana Gray (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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This case now proceeds on Plaintiff’s Fourth Amended

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pursuant to 42 U.S.C. § 1983.

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Complaint filed on September 21, 2015, against defendants Dr. V. Romero, Dr. A. Comelli,

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FNP N. Loadholt, Dr. C. Rebel, John Ziomek, DPM, and Dr. V. Mundunuri, on Plaintiff’s

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medical claim under the Eighth Amendment. (ECF No. 45.) This case is now in the discovery

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phase.

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On April 29, 2016, defendant Rebel filed a motion to dismiss the claims against him as

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barred by the statute of limitations.

(ECF No. 57.)

On August 31, 2016, defendants

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Mundunuri and Ziomek filed a motion for judgment on the pleadings based on Plaintiff’s

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failure to exhaust administrative remedies. (ECF No. 122.) These two motions are pending.

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On February 9, 2017, February 16, 2017, and February 22, 2017, Plaintiff filed a motion

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for extension of time to amend the complaint, motion to supplement the complaint, and motion
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to amend and supplement the complaint, respectively. (ECF Nos. 166, 171, 172.) On February

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28, 2017, Defendant Rebel filed an opposition to the motion to amend and supplement the

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complaint. (ECF No. 174.) Defendant Rebel argues that to allow Plaintiff to file a Fifth

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Amended Complaint at this stage of the proceedings would be prejudicial to him because it

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would render moot his pending motion to dismiss.

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Defendant Rebel’s argument has merit. Plaintiff’s motions are premature at this stage

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of the proceedings. Until a final ruling is made on defendant Rebel’s motion to dismiss and

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defendants Mundunuri and Ziomek’s motion for judgment on the pleadings, Plaintiff may not

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amend or supplement the complaint.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for extension of time

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to amend the complaint, motion to supplement the complaint, and motion to amend and

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supplement the complaint, filed on February 9, 2017, February 16, 2017, and February 22,

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2017, respectively, are DENIED as premature.

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IT IS SO ORDERED.
Dated:

March 2, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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