Dillingham v. Emerson
Filing
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ORDER DENYING 64 Plaintiff's Motion for a Court Order Directing Defendants to File an Answer to Plaintiff's Second Amended Complaint signed by Magistrate Judge Stanley A. Boone on 1/7/2020. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JERRY DILLINGHAM,
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Case No. 1:18-cv-00507-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR A COURT ORDER DIRECTING
DEFENDANTS TO FILE AN ANSWER TO
PLAINTIFF’S SECOND AMENDED
COMPLAINT
Plaintiff,
v.
N. EMERSON, et al.,
Defendants.
(ECF No. 64)
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Plaintiff Jerry Dillingham is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
On August 19, 2019, Defendants Velasco, Martinez, Loftin, Emerson, Marsh, Wescoat,
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and Wilson filed a motion to dismiss Plaintiff’s Eighth Amendment claim on the ground that they
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are entitled to qualified immunity. (ECF No. 54.)
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On December 18, 2019, the undersigned issued findings and recommendations
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recommending that Defendants’ motion to dismiss Plaintiff’s Eighth Amendment claim be
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denied. (ECF No. 61.)
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Currently before the Court is Plaintiff’s motion for a court order directing Defendants to
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file an answer to Plaintiff’s second amended complaint, filed on January 6, 2020. (ECF No. 64.)
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Plaintiff contends that, since the undersigned issued findings and recommendations denying
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Defendants’ motion to dismiss, the Court should order Defendants to file an answer to Plaintiff’s
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second amended complaint within fourteen days. (Id.)
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However, initially, Plaintiff’s motion is premature. While the undersigned has issued
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findings and recommendations recommending that Defendants’ motion to dismiss be denied, the
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thirty (30) day period in which the parties can file objections to the findings and
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recommendations has not yet lapsed and the District Judge assigned to this case has not yet issued
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his ruling on Defendants’ motion to dismiss. Further, if the District Judge adopts the findings and
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recommendations and denies Defendants’ motion to dismiss brought pursuant to Rule 12(b)(6),
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Federal Rule of Civil Procedure 12(a)(4)(A) already provides that Defendants will have to serve
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their responsive pleading “within 14 days after notice of the court’s action[.]” Fed. R. Civ. P.
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12(a)(4). No motion asking the Court to require Defendants to file an answer is now, or will be,
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necessary.
Accordingly, Plaintiff’s motion for a court order directing Defendants to file an answer to
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Plaintiff’s second amended complaint, (ECF No. 64), is HEREBY DENIED.
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IT IS SO ORDERED.
Dated:
January 7, 2020
UNITED STATES MAGISTRATE JUDGE
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