Garbarini v. Ulit et al

Filing 29

ORDER Setting Telephonic Hearing on Defendants' Motion to Dismiss, signed by Magistrate Judge Stanley A. Boone on 4/24/15. Telephonic Hearing set for 5/6/2015 at 10:00 AM before Magistrate Judge Stanley A. Boone.(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RALPH GARBARINI,

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Plaintiff,

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v.
WAYNE ULIT, et al.,
Defendants.

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Case No.: 1:14-cv-01058-AWI-SAB (PC)
ORDER SETTING TELEPHONIC HEARING ON
DEFENDANTS’ MOTION TO DISMISS, FOR
MAY 6, 2015 AT 10:00 A.M. BEFORE THE
UNDERSIGNED IN COURTROOM 9
[ECF No. 14]

Plaintiff Ralph Garbarini is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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On February 10, 2015, Defendants filed a motion to dismiss for failure to state a cognizable

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claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff filed an opposition on

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April 13, 2015, and Defendants filed a reply on April 20, 2015. Pursuant to Local Rule 230(l), the

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motion is deemed submitted for review.

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Because the screening standard does not differ from the standard governing Rule 12(b)(6)

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motions, Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012), the Court generally views motions to

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dismiss for failure to state a claim with disfavor. Unless a motion sets forth new or different grounds

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not previously considered by the Court, it is disinclined to rethink what it has already thought.

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Sequoia Forestkeeper v. U.S. Forest Service, No. CV F 09-392 LJO JLT, 2011 WL 902120, at *6

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(E.D.Cal. Mar. 15, 2011) (citing United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz.1998))
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(quotation marks omitted). It is not apparent from a review of Defendants’ motion to dismiss that this

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case presents an exception, as the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A,

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and found it stated a cognizable claim against Defendants Doctors Wayne Ulit, David Gail Smith,

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Jong Yeoung Moon, and Jeffrey Jeng-Tao Wang for deliberate indifference to a serious medical need

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in violation of the Eighth Amendment. (ECF No. 7.) Accordingly, the Court shall set a telephonic

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hearing on May 6, 2015 at 10:00 a.m., to address the Defendants’ motion in light of the fact that the

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Court previously screened the complaint and found cognizable claims.

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Based on the foregoing, it is HEREBY ORDERED that:

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This matter is set for telephonic oral hearing on May 6, 2015, to address Defendants’
motion to dismiss, filed February 10, 2015;

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2.

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Counsel for Defendants is directed to arrange for telephone contact with Plaintiff, who
is presently incarcerated at California State Prison, in Corcoran; and

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3.

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Counsel for Defendants shall also contact Courtroom Deputy, Mamie Hernandez, at

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[phone], prior to the hearing date, to receive instructions regarding the

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conference call.

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IT IS SO ORDERED.

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Dated:

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April 24, 2015
UNITED STATES MAGISTRATE JUDGE

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