(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 MICHELLE (a/k/a MYCHAL) CONCEPCION, Plaintiff, 13 14 15 16 v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., ORDER DIRECTING DEFENDANTS TO FILE SUPPLEMENT TO MOTION TO DISMISS 30-DAY DEADLINE Defendants. 17 18 Case No. 1:18-cv-01743-NONE-JLT (PC) Plaintiff alleges that Defendants denied him sex reassignment surgery (SRS) in violation 19 of the Eighth Amendment, the Fourteenth Amendment, and the Patient Protection and Affordable 20 Care Act. (Doc. 15.) Pending before the Court is Defendants’ motion to dismiss Plaintiff’s 21 complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 27.) Plaintiff has filed an 22 opposition, to which Defendants have filed a reply. (Docs. 34, 38.) In their reply, Defendants state 23 that, after filing their motion, Plaintiff was approved for SRS, which “raises the question of 24 whether the Court has subject-matter jurisdiction over Plaintiff’s claim for injunctive relief.” 25 (Doc. 38 at 2.) 26 Generally, parties “cannot raise a new issue for the first time in their reply briefs.” State of 27 Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir. 1990) (internal quotation marks and citations 28 omitted); see also Bolton v. McEwen, No. 2:14-cv-0803-GEB-CKD, 2014 WL 4368274, at *1 1 (E.D. Cal. 2014). “However, ‘[a] party may raise jurisdictional challenges at any time during the 2 proceedings,’ even on appeal for the first time.” Bolton, 2014 WL 4368274, at *1 (quoting 3 Attorneys Tr. v. Videotape Computer Prod., Inc., 93 F.3d 593, 595 (9th Cir. 1996)) (citation 4 omitted). The Court will therefore consider the issue of subject-matter jurisdiction. The Court, 5 however, requires additional briefing. Accordingly, the Court ORDERS: 6 1. Within 30 days of the date of service of this order, Defendants shall file a 7 supplemental brief on the question of the Court’s subject-matter jurisdiction, pursuant 8 to Federal Rule of Civil Procedure 12(b)(1), including the issues of standing and 9 mootness; 10 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, 11 12 3. Within 7 days of the date of Plaintiff’s filing of a supplemental opposition, if any, Defendants may file a reply. 13 14 IT IS SO ORDERED. 15 16 Dated: October 15, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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