Gray v. Johnson et al

Filing 320

ORDER DENYING Defendants' Motions as Premature, Without Prejudice, to Renewal After the Court Has Completed Screening the Sixth Amended Complaint re 309 & 311 , signed by Magistrate Judge Gary S. Austin on 3/19/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANA GRAY,

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Plaintiff,
vs.
ROMERO, et al.,
Defendants.

1:13-cv-01473-DAD-GSA-PC
ORDER DENYING DEFENDANTS’
MOTIONS AS PREMATURE, WITHOUT
PREJUDICE, TO RENEWAL AFTER THE
COURT HAS COMPLETED SCREENING
THE SIXTH AMENDED COMPLAINT
(ECF Nos. 309, 311.)

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

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pursuant to 42 U.S.C. § 1983. This case was filed on September 12, 2013. (ECF No. 1.)

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Plaintiff filed the Sixth Amended Complaint on February 12, 2018. (ECF No. 307.)

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On February 28, 2018, defendant Rebel filed a motion to dismiss Claim I of the Sixth

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Amended Complaint, or in the alternative, for summary judgment as to Claim I of the Sixth

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Amended Complaint. (ECF No. 309.) On March 5, 2018, defendants Ziomek, Romero,

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Comelli, Loadholdt, and Mundurni filed a motion to dismiss the Sixth Amended Complaint.

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(ECF No. 311.)

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Defendants’ motions are premature. Under 28 U.S.C. § 1915A(a), the court is required

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to screen complaints brought by prisoners seeking relief against a governmental entity or

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officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss

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a complaint, or portion thereof, if the prisoner has raised claims that are legally “frivolous or
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malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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Plaintiff’s Sixth Amended Complaint awaits the court’s requisite screening. Until the

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court has completed its screening, Defendants should not file an answer or other responsive

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pleading.

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Based on the foregoing, IT IS HEREBY ORDERED that defendant Rebel’s motion to

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dismiss or for summary judgment, filed on February 28, 2018, and defendants Ziomek,

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Romero, Comelli, Loadholdt, and Mundurni’s motion to dismiss, filed on March 5, 2018, are

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DENIED as premature, without prejudice to renewal of the motions after the court has

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completed screening the Sixth Amended Complaint.

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IT IS SO ORDERED.
Dated:

March 19, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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