Gonzales v. Ferrso, et al.

Filing 35

ORDER Directing Response from Defendants signed by Magistrate Judge Erica P. Grosjean on 08/29/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER DIRECTING RESPONSE FROM DEFENDANTS Plaintiff, 12 13 Case No. 1:16-cv-01813-EPG (PC) MICHAEL GONZALES, v. FERRSO et al, Defendants. Michael Gonzales (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The Court screened Plaintiff’s civil rights complaint on March 10, 2017 and found that the complaint states a claim for forcible medication in violation of the Due Process Clause of the Fourteenth Amendment against Defendants Garcia, Brosman, B. Zavala, Herrick, Tacara, Franklin, Rodriguez, Escalante and Davis. (ECF No. 14). The Court also found that Plaintiff did not state any other claim based on the grievance process. (Id.) On July 5, 2017, Defendants Brosman, Davis, Escalante, Garcia, Herrick, Rodriguez, Tacara, and B. Zavala filed a motion to dismiss. (ECF No. 25). In the motion, Defendants ask the Court to dismiss both the due process claim that the claim found cognizable on March 10, 2017, and Plaintiff’s claim related to grievance procedure that the Court found was not cognizable in the screening order. The motion to dismiss also makes no mention of the Court’s 28 1 1 screening order, which evaluated Plaintiff’s complaint under the same legal standard as a Rule 2 12(b)(6) motion to dismiss. 3 Because Defendants are asking the Court to dismiss at least one claim that it has already 4 found non-cognizable, it appears to the Court that Defendants may not have had the benefit of 5 the Court’s March 10, 2017 screening order when they drafted the motion to dismiss. 6 Accordingly, the Court ORDERS as follows: 7 1. Defendants are directed to review the Court’s March 10, 2017 screening order. (ECF No. 14). 8 9 2. Defendants are directed to file a response to this order within 7 days indicating 10 whether they still intend to proceed on the motion to dismiss (ECF No. 25), or 11 alternatively whether they withdraw that motion. 12 13 14 IT IS SO ORDERED. Dated: August 29, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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