Estate of Jose Herrera, et al v. California Department of Corrections,et al

Filing 10

ORDER Directing this Action to Proceed Under Local Rule 230; Striking Defendants' First Motion to Dismiss; and Vacating the Hearing on Defendants' Second Motion to Dismiss signed by Magistrate Judge Sheila K. Oberto on 10/21/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ESTATE OF JOSE HERRERA, et al.,

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Plaintiffs,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,

Case No. 1:16-cv-01053-DAD-SKO (PC)
ORDER DIRECTING THIS ACTION TO
PROCEED UNDER LOCAL RULE 230(l);
STRIKING DEFENDANTS’ FIRST MOTION TO
DISMISS; AND VACATING THE HEARING ON
DEFENDANTS’ SECOND MOTION TO DISMISS
(Docs. 5, 6, 7, 8)

Defendants.

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Plaintiffs, the Estate of Jose Herrera, Jose A. Herrera, Martha Herrera and Jose Herrera,

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named individually and as the Successors in Interest of Jose E. Herrera, a state prisoner at the

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time of his death, filed this civil rights action pursuant to 42 U.S.C. ' 1983. (Doc. 1.) This action

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involves past conditions of confinement at Kern Valley State Prison California Correctional

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Institution in Tehachapi.

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On October 6, 2016, Defendants filed a motion to dismiss and set it for hearing before the

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District Judge. (Doc. 6.) Although Jose Herrera was not incarcerated when this action was filed,

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on October 12, 2016, the Court directed the Clerk of Court to amend the docket in this matter to

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reflect the designation of this case as a prisoner case by adding the suffix “PC” to the case

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number, vacated all pending hearing dates, and ordered that all pending motions be re-noticed for

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hearing before the undersigned magistrate judge. (Doc. 7.) Defendants thereafter filed a

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duplicative motion to dismiss set for hearing before the undersigned, but did not withdraw their

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original motion to dismiss. (Doc. 8.)

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District courts have broad discretion to manage the course of litigation and their calendars.

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Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012); see also U.S. v. Batiste, 868 F.2d

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1089, 1091 n.4 (9th Cir. 1989).
In light of the above, it is HEREBY ORDERED that:

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1.

Local Rule 230(l) shall apply to this case;

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2.

The hearing on Defendants’ motion to dismiss, filed on October 14, 2016, is
vacated;

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3.

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Within five (5) days of the date of service of this order, Defendants shall withdraw
one of their motions to dismiss (either Doc. 6 or Doc. 8) via CM/ECF;

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4.

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Within twenty-six (26) days of the date of service of this order, Plaintiffs shall file

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either an opposition to Defendants’ remaining motion to dismiss, or a statement of

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non-opposition and a first amended complaint; and
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If Plaintiffs file an opposition, Defendants shall file their reply within seven (7)
days.

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IT IS SO ORDERED.
Dated:

October 21, 2016

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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