Garcia v. Beard et al

Filing 60

ORDER DIRECTING Defendant to Respond to Complaint Following Disposition of Motion for Summary Judgment, signed by Magistrate Judge Stanley A. Boone on 8/28/17. Responsive Pleading Due Date: September 8, 2017. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FELIPE GARCIA,

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Plaintiff,
v.

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J. HOBMEIER, et al.,
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Defendants.
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Case No. 1:14-cv-00625-LJO-SAB (PC)
ORDER DIRECTING DEFENDANT TO
RESPOND TO COMPLAINT FOLLOWING
DISPOSITION OF MOTION FOR SUMMARY
JUDGMENT
Responsive Pleading Due Date: September 8, 2017

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Plaintiff Felipe Garcia is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s first amended complaint, filed

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December 23, 2015, against Defendant Emerson for excessive force, and against Defendants Gaona,

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Hobmeier, and Wildey for failure to protect. (ECF No. 28.)

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On August 16, 2016, Defendants filed an ex parte request to file a pre-answer motion for

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summary judgment. (ECF No. 38.) On August 23, 2016, the Court issued an order granting

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Defendants’ request, and requiring the motion for summary judgment to be filed within sixty days of

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the date of service of that order. (ECF No. 39.)

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On October 19, 2016, Defendants filed a motion for summary judgment for failure to exhaust

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administrative remedies, which was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B)

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and Local Rule 302. (ECF No. 44.) The parties proceeded to brief the motion for summary judgment.

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On July 26, 2017, the undersigned recommended that Defendants’ motion be denied. (ECF No.

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56.) Plaintiff filed objections to the findings and recommendations on August 9, 2017, (ECF No. 57),

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and Defendants filed objections on August 24, 2017, (ECF No. 58).
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On August 25, 2017, the District Judge adopted the findings and recommendations in full, over

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the parties’ objections. (ECF No. 59.) The August 25, 2017 order was entered by the Clerk of the

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Court that same day, and electronic notice was immediately provided to defense counsel, while

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Plaintiff was served with the order by mail.

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Defendants’ motion for summary judgment having been disposed of, Defendants are now

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required to file and serve a responsive pleading to the first amended complaint. See Mann v. Lee, No.

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C 07-00781 MMC (PR), 2009 WL 5178095, at *2 (N.D. Cal. Dec. 22, 2009) (discussing that a motion

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for summary judgment that adequately contests the action extends the time for a defendant to file a

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responsive pleading to the complaint until after summary judgment is decided, pursuant to the tolling

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provisions of Rule 12(a)). Under the relevant provisions of Rule 12(a), a responsive pleading must be

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served within fourteen days after notice of the Court’s disposition of Defendants’ motion for summary

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judgment. See Fed. R. Civ. P. 12(a)(4)(A).
Accordingly, it is HEREBY ORDERED that Defendant file and serve a responsive pleading to

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Plaintiff’s complaint on or before September 8, 2017.

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IT IS SO ORDERED.

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Dated:

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August 28, 2017
UNITED STATES MAGISTRATE JUDGE

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