Dillingham v. Emerson

Filing 65

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)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

JERRY DILLINGHAM,

10
11
12
13

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)

14
15
16
17

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,

18

and Wilson filed a motion to dismiss Plaintiff’s Eighth Amendment claim on the ground that they

19

are entitled to qualified immunity. (ECF No. 54.)

20

On December 18, 2019, the undersigned issued findings and recommendations

21

recommending that Defendants’ motion to dismiss Plaintiff’s Eighth Amendment claim be

22

denied. (ECF No. 61.)

23

Currently before the Court is Plaintiff’s motion for a court order directing Defendants to

24

file an answer to Plaintiff’s second amended complaint, filed on January 6, 2020. (ECF No. 64.)

25

Plaintiff contends that, since the undersigned issued findings and recommendations denying

26

Defendants’ motion to dismiss, the Court should order Defendants to file an answer to Plaintiff’s

27

second amended complaint within fourteen days. (Id.)

28

However, initially, Plaintiff’s motion is premature. While the undersigned has issued
1

1

findings and recommendations recommending that Defendants’ motion to dismiss be denied, the

2

thirty (30) day period in which the parties can file objections to the findings and

3

recommendations has not yet lapsed and the District Judge assigned to this case has not yet issued

4

his ruling on Defendants’ motion to dismiss. Further, if the District Judge adopts the findings and

5

recommendations and denies Defendants’ motion to dismiss brought pursuant to Rule 12(b)(6),

6

Federal Rule of Civil Procedure 12(a)(4)(A) already provides that Defendants will have to serve

7

their responsive pleading “within 14 days after notice of the court’s action[.]” Fed. R. Civ. P.

8

12(a)(4). No motion asking the Court to require Defendants to file an answer is now, or will be,

9

necessary.
Accordingly, Plaintiff’s motion for a court order directing Defendants to file an answer to

10
11

Plaintiff’s second amended complaint, (ECF No. 64), is HEREBY DENIED.

12
13
14
15

IT IS SO ORDERED.
Dated:

January 7, 2020
UNITED STATES MAGISTRATE JUDGE

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