(PC) Concepcion v. California Department of Corrections and Rehabilitation et al

Filing 41

ORDER DIRECTING DEFENDANTS TO FILE SUPPLEMENT TO MOTION TO DISMISS,signed by Magistrate Judge Jennifer L. Thurston on 10/15/2020. ( Case Management Deadline due within in 30-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHELLE (a/k/a MYCHAL)
CONCEPCION,
Plaintiff,

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v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

ORDER DIRECTING DEFENDANTS TO
FILE SUPPLEMENT TO MOTION TO
DISMISS
30-DAY DEADLINE

Defendants.

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Case No. 1:18-cv-01743-NONE-JLT (PC)

Plaintiff alleges that Defendants denied him sex reassignment surgery (SRS) in violation

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of the Eighth Amendment, the Fourteenth Amendment, and the Patient Protection and Affordable

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Care Act. (Doc. 15.) Pending before the Court is Defendants’ motion to dismiss Plaintiff’s

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complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 27.) Plaintiff has filed an

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opposition, to which Defendants have filed a reply. (Docs. 34, 38.) In their reply, Defendants state

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that, after filing their motion, Plaintiff was approved for SRS, which “raises the question of

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whether the Court has subject-matter jurisdiction over Plaintiff’s claim for injunctive relief.”

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(Doc. 38 at 2.)

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Generally, parties “cannot raise a new issue for the first time in their reply briefs.” State of

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Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir. 1990) (internal quotation marks and citations

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omitted); see also Bolton v. McEwen, No. 2:14-cv-0803-GEB-CKD, 2014 WL 4368274, at *1

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(E.D. Cal. 2014). “However, ‘[a] party may raise jurisdictional challenges at any time during the

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proceedings,’ even on appeal for the first time.” Bolton, 2014 WL 4368274, at *1 (quoting

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Attorneys Tr. v. Videotape Computer Prod., Inc., 93 F.3d 593, 595 (9th Cir. 1996)) (citation

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omitted). The Court will therefore consider the issue of subject-matter jurisdiction. The Court,

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however, requires additional briefing. Accordingly, the Court ORDERS:

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1. Within 30 days of the date of service of this order, Defendants shall file a

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supplemental brief on the question of the Court’s subject-matter jurisdiction, pursuant

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to Federal Rule of Civil Procedure 12(b)(1), including the issues of standing and

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mootness;

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2. Within 21 days of the date of Defendants’ filing of the supplemental brief, Plaintiff
shall file a supplemental opposition or a statement of non-opposition; and,

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3. Within 7 days of the date of Plaintiff’s filing of a supplemental opposition, if any,
Defendants may file a reply.

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IT IS SO ORDERED.

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Dated:

October 15, 2020

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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