McCoy v. Garikaparthi et al

Filing 36

ORDER Regarding 35 Defendants' Notice of Withdrawal of Motion and Ex Parte Request for Extension of Time to File Responsive Pleadings; ORDER Terminating 26 Defendants' Motion for Order Revoking Plaintiff's In Forma Pauperis Status or Dismissing Case; and ORDER Granting Defendants Until 2/18/2016 to File a Responsive Pleading signed by Magistrate Judge Barbara A. McAuliffe on 1/20/2016. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAKEITH L. McCOY,

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v.

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Case No. 1:13-cv-01495 BAM (PC)
Plaintiff, ORDER REGARDING DEFENDANTS’
NOTICE OF WITHDRAWAL OF MOTION
AND EX PARTE REQUEST FOR
EXTENSION OF TIME TO FILE
RESPONSIVE PLEADINGS

M. GARIKAPARTHI, et al.,
(ECF No. 35)
Defendants.

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ORDER TERMINATING DEFENDANTS’
MOTION FOR ORDER REVOKING
PLAINTIFF’S IN FORMA PAUPERIS
STATUS OR DISMISSING CASE

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(ECF No. 26)

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FEBRUARY 18, 2016 RESPONSIVE
PLEADING DEADLINE

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Plaintiff LaKeith L. McCoy (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds on

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Plaintiff’s first amended complaint against Defendants Garikaparthi, Steiber, Keeler and Chavez

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for violation of Plaintiff’s Eighth Amendment rights arising from the alleged deprivation of

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adequate food.
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On November 19, 2016, Defendants filed a motion for an order revoking Plaintiff’s in

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forma pauperis status or dismissing the case, pursuant to 28 U.S.C. § 1915(g). (ECF No. 26.) On

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January 7, 2016, Plaintiff filed an opposition to Defendants’ motion. (ECF No. 34.) Among other

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grounds for opposing Defendants’ motion, Plaintiff argued that he did not, on three or more prior

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occasions previous to filing the complaint in this case, incur “three-strikes” pursuant to 28 U.S.C.

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§ 1915(g). (ECF No. 34, pp. 10-13.) He noted that several of the matters that Defendants relied on

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in support of their motion were dismissed after he filed the complaint in this matter.
On January 13, 2016, Defendants filed a notice of withdrawal of their November 19, 2016

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motion, combined with a request for an extension of time to file a responsive pleading to

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Plaintiff’s amended complaint. (ECF No. 35.) In their supporting documentation, Defendants

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agreed that Plaintiff’s argument that some of his “strikes” were incurred after the complaint in

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this case was filed is well-taken, and as a result they withdraw their motion. (ECF No. 35-2, p. 2.)
Defendants also seek an extension to and including February 18, 2016 to file a responsive

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pleading to Plaintiff’s amended complaint. In support, they submitted a declaration of counsel

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discussing that counsel’s calendar and caseload prevent him from filing a responsive pleading

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before the requested deadline. (Id.) Defendants also note that the Court previously granted their

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request for a reasonable period of time to respond to Plaintiff’s amended complaint after the

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Court ruled on the motion they now seek to withdraw. (ECF No. 30.)
Defendants have shown good cause for the requested extension based on counsel’s schedule

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and the good-faith withdrawal of their motion which had delayed the need for a responsive

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pleading. Fed. R. Civ. P. 16(b)(4). Furthermore, Plaintiff will not be prejudiced by the grant of

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this extension as Defendants’ potentially dispositive motion is now withdrawn and the case is

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moving forward within a reasonable period of time.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Defendants’ Motion for Order Revoking Plaintiff’s In Forma Pauperis Status or

Dismissing Case (ECF No. 26) shall be deemed WITHDRAWN; and,
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Defendants’ request for an extension of time to file a responsive pleading (ECF No.

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35) is GRANTED. On or before February 18, 2016, Defendants shall file and serve a response to

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Plaintiff’s amended complaint.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

January 20, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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