Garbarini v. Ulit et al

Filing 53

ORDER Directing Defendants to File a Response to Plaintiff's First Amended Complaint Filed September 30, 2015, within Thirty Days from the Date of Service of this Order, signed by Magistrate Judge Stanley A. Boone on 11/4/15. (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.,

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Defendants.

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Case No.: 1:14-cv-01058-AWI-SAB (PC)
ORDER DIRECTING DEFENDANTS TO FILE A
RESPONSE TO PLAINTIFF’S FIRST AMENDED
COMPLAINT, FILED SEPTEMBER 30, 2015,
WITHIN THIRTY DAYS FROM THE DATE OF
SERVICE OF THIS ORDER
[ECF No. 50]

Plaintiff Ralph Garbarini is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983.

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On October 24, 2014, the Court this action could proceed against Defendants Wang, Ulit,

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Moon, and Smith on Plaintiff’s claim of deliberate indifference to a serious medical need, and the

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Court ordered service of the complaint by the United States Marshal on December 2, 2014. (ECF Nos.

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7, 9.)
On February 10, 2015, Defendants filed a motion to dismiss the original complaint. (ECF No.

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14.)
On March 30, 2015, Plaintiff filed a motion for summary judgment and the Court ordered
Defendants to oppose the motion on or before July 16, 2015. (ECF Nos. 19, 36.)

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On June 25, 2015, Defendants’ motion to dismiss was denied, except for dismissal of

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Plaintiff’s claims against Defendants in their official capacity for monetary damages. (ECF No. 36.)
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On July 6, 2015, Plaintiff filed a motion for leave to amend the complaint. (ECF No. 37.)

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Defendants do not oppose Plaintiff’s request to amend the complaint. (ECF No. 42.) However,

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Defendants request that Plaintiff’s pending motion for summary judgment be vacated because (1): an

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amended complaint supersedes the original complaint and the motion for summary judgment is based

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on the original complaint; (2) Plaintiff recently filed an interlocutory appeal; and (3) if amendment is

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granted, the Court must screen the amended complaint pursuant to 28 U.S.C. § 1915A. (Id.)
Plaintiff’s motion to amend the complaint was granted on September 30, 2015, and Plaintiff’s

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first amended complaint lodged on July 6, 2015, was filed. (ECF Nos. 49, 50.) The Court also denied

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Plaintiff’s motion for summary judgment as moot. (ECF No. 49.)
The Court has screened Plaintiff’s first amended complaint, filed September 30, 3015,1 and

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finds that Plaintiff states a cognizable claim for deliberate indifference to a serious medical need

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against Defendants Wang, Ulit, Moon, and Smith. 28 U.S.C. § 1915A. Accordingly, Defendants are

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required to file a response to Plaintiff’s first amended complaint within thirty (30) days from the date

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of service of this order.

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IT IS SO ORDERED.

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Dated:

November 4, 2015
UNITED STATES MAGISTRATE JUDGE

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Plaintiff submitted an identical first amended complaint, which was lodged by the Court on October 13, 2015. (ECF No.
52.)

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