Gray v. Tilton et al

Filing 55

ORDER signed by Judge Kimberly J. Mueller on 11/2/2015 VACATING 51 Judgment; ORDERING that the claims raised in case no. 2:14-cv-00473 KJM KJN (PC) proceed in this case; DIRECTING the Clerk of the Court to transfer the Second Amended Complaint, the Motion to Amend and the Proposed Third Amended Complaint filed in case no. 2:14-cv-00473 KJM KJN (PC) to this case to be filed as of the date they were filed in the other case; DIRECTING the Clerk of the Court to close case no. 2:14-cv-00473 KJM KJN (PC); REFERRING this case back to the assigned magistrate judge for further pretrial proceedings. CASE REOPENED. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICKY GRAY,

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Plaintiff,

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No. 2:14-cv-0473 KJM EFB P

v.
B. COGDELL, et al.,

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Defendants.

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RICKY GRAY,
Plaintiff,

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v.

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No. 2:11-cv-2103 KJM EFB P

ORDER

JAMES TILTON, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, filed the above-captioned civil rights actions

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seeking relief under 42 U.S.C. § 1983. The matters were referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Gray v. Tilton, No. 2:11-cv-

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2103 KJM EFB P (hereafter the 2011 case) was dismissed on January 7, 2014. Gray v. Cogdell,

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No. 2:14-cv-0473 KJM EFB P (hereafter the 2014 case) is pending.

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On September 30, 2015, defendants in the 2011 case were ordered to show cause within

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fourteen days why the judgment in the 2011 case should not be vacated and plaintiff be directed

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to proceed in the 2011 case rather than the 2014 case. On October 14, 2015, defendants in the

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2011 case filed a statement of non-opposition in response to the order to show cause.

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Accordingly, good cause appearing, the judgment entered in the 2011 case will be vacated and

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plaintiff will be directed to proceed with his claims in that case. The 2014 case will be closed.

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Defendants also request clarification of which complaint in the 2014 case shall be the

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operative complaint. By order filed June 6, 2014, plaintiff’s first amended complaint was

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dismissed with leave to file a second amended complaint. ECF No. 11. On July 14, 2014,

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plaintiff filed a second amended complaint, ECF No. 15, and on May 28, 2015, plaintiff filed a

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motion to amend the complaint, accompanied by a proposed third amended complaint. Good

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cause appearing, the Clerk of the Court will be directed to transfer the second amended

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complaint, ECF No. 15, the motion to amend, ECF No. 19, and the proposed third amended

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complaint, ECF No. 20. All three documents shall be filed in the 2011 case as of the date they

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were filed in the 2014 case. This matter will be referred back to the assigned magistrate judge for

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resolution of plaintiff’s motion to amend and screening in accordance with the requirements of 28

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U.S.C. § 1915A.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The judgment entered January 7, 2014 in Case No. 11-cv-2103 KJM EFB P is vacated.

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2. Henceforth the claims raised in Case No. 2:14-cv-0473 KJM EFB P shall proceed in

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Case No. 2:11-cv-2103 KJM EFB P.

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3. The Clerk of the Court is directed to transfer the second amended complaint, ECF No.

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15, the motion to amend, ECF No. 19, and the proposed third amended complaint, ECF No. 20,

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filed in Case No. 2:14-cv-0473 KJM EFB P to Case No. 2:11-cv-2103 KJM EFB P. All three

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documents shall be filed in the 2011 case as of the date they were filed in the 2014 case.

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4. The Clerk of the Court is directed to close Case No. 2:14-cv-0473 KJM EFB P.

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5. Case No. 2:11-cv-2103 KJM EFB P is referred back to the assigned magistrate judge

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for further pretrial proceedings.

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DATED: November 2, 2015.

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UNITED STATES DISTRICT JUDGE

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