Mendez v. United States of America et al

Filing 20

ORDER DENYING 12 Motion to Stay as MOOT signed by Magistrate Judge Michael J. Seng on 10/14/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 FELIPE MENDEZ, JR., 13 14 15 16 Plaintiff, v. 1:17-cv-00555-LJO-MJS (PC) ORDER DENYING MOTION TO STAY AS MOOT (ECF No. 12) UNITED STATES OF AMERICA, et al., Defendants. 17 18 19 20 Plaintiff is a prisoner proceeding pro se and in forma pauperis in a civil rights 21 action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and the 22 Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”). 23 On July 11, 2017, the Court screened Plaintiff’s first amended complaint and 24 found it stated cognizable Eighth Amendment claims against Defendants Ghotra, Awad, 25 Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, and Gramm. (ECF No. 11.) 26 Plaintiff was directed to file either a second amended complaint or a notice of willingness 27 to proceed on his cognizable claims only. After first seeking an extension of time in 28 1 1 which to file his second amended complaint, Plaintiff filed a notice of willingness to 2 proceed on his cognizable claims only. (ECF No. 16.) Then on September 25, 2017, 3 Plaintiff filed a request to withdraw his notice of willingness to proceed (ECF No. 17) and 4 requested a sixty day extension of time to file a second amended complaint (ECF No. 5 18.) 6 As Plaintiff’s first amended complaint was not been sent out for service, his 7 request to withdraw his notice of willingness to proceed was granted. (ECF No. 19.) 8 Plaintiff also was granted sixty days to file his second amended complaint. (Id.) 9 On July 13, 2017, Plaintiff filed motion to stay this action and hold it in abeyance 10 while pending his transfer to a new correctional institution because the transfer would 11 interfere with his ability to proceed. (ECF No. 12.) 12 Plaintiff has been actively involved in this case since the filing of his motion to 13 stay, including filing the September 25, 2017 motion. (ECF No. 18.) Because Plaintiff is 14 participating in this action and has been granted a 60 day extension of time to file a 15 second amended complaint (ECF No. 19), it appears he is no longer in need of the 16 requested stay. Accordingly, his motion to stay is found to be moot. 17 18 19 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to stay (ECF No. 12) is DENIED AS MOOT. IT IS SO ORDERED. 20 21 Dated: October 14, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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