Tran v. Junious et al

Filing 34

ORDER VACATING 31 Order Denying Defendant's Rule 12(b)(6) Motion to Dismiss re 32 signed by Magistrate Judge Erica P. Grosjean on 11/23/2016. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

BINH TRAN,

12
13
14
15

Plaintiff,
v.

1:14-cv-01320-DAD-EPG (PC)
ORDER VACATING ORDER DENYING
DEFENDANT’S RULE 12(b)(6) MOTION
TO DISMISS
(ECF NO. 31)

E. SMITH,
Defendant.

16
17
18
19

Binh Tran (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with

20

this civil rights action filed pursuant to 42 U.S.C. § 1983 and attendant state law claim for

21

common law negligence. This case now proceeds on Plaintiff’s Second Amended Complaint,

22

filed on February 17, 2015, against defendant Sergeant E. Smith on Eighth Amendment and

23

negligence claims. (ECF No. 13).

24

On August 19, 2016, Defendant filed a Rule 12(b)(6) motion to dismiss for failure to

25

state a claim. (ECF No. 27). On September 26, 2016, Plaintiff filed an opposition to the

26

motion. (ECF No. 29). On October 4, 2016, Defendant filed a reply. (ECF No. 30). On

27

November 7, 2016, the Court issued an order denying Defendant’s Rule 12(b)(6) motion to

28

dismiss for failure to state a claim (“the Order”). (ECF No. 31).
1

1

On November 22, 2016, Defendant filed a motion for reconsideration by the district

2

court of the magistrate judge’s order denying Defendant’s Rule 12(b)(6) motion to dismiss.

3

(ECF No. 32).

4

Because it appears that Defendant has not consented to magistrate judge jurisdiction,

5

this Court’s Order was entered in error. Therefore, the Court will vacate the Order and will

6

instead issue findings and recommendations consistent with the Court’s orders. Both parties

7

will have an opportunity to object to the findings and recommendations.

8

Accordingly, based on the foregoing, it is ORDERED that the order denying

9

Defendant’s Rule 12(b)(6) motion to dismiss for failure to state a claim (ECF No. 31) is

10

VACATED.

11
12
13

IT IS SO ORDERED.
Dated:

November 23, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2