Garrison v. Bautista

Filing 71

ORDER signed by Magistrate Judge Kendall J. Newman on 8/28/15 ORDERING that within 21 days of entry of this order, proposed defendant Corporal Estudillo is directed to serve and file either an opposition or a statement of non- opposition to plaintiff's motion to amend. If Corporal Estudillo files an opposition, plaintiff is granted seven days thereafter in which to file a reply.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ANTHONY TYRONE GARRISON,

12

Plaintiff,

13
14

No. 2:13-cv-0479 JAM KJN P

v.

ORDER OF CLARIFICATION

OFFICER BAUTISTA,

15

Defendant.

16
Plaintiff is a former state prisoner, who proceeds in forma pauperis and without counsel,

17
18

in this civil rights action filed pursuant to 42 U.S.C. § 1983.
By order filed July 29, 2015, the court directed plaintiff to either (i) notify the court if he

19
20

wished to continue to proceed against Officer Bautista as the sole named defendant in this action,

21

or else (ii) amend his complaint to add Corporal Estudillo as an additional named defendant.1

22

Plaintiff was given 14 days to file his response. Defendant Bautista was advised that he would be

23

given an opportunity to oppose any motion to amend. (ECF No. 69.)
On August 11, 2015, plaintiff timely filed a motion to amend his complaint, together with

24
25

a proposed complaint and a declaration which provides in pertinent part as follows:2

26

1

27
28

Both Officer Bautista and Corporal Estudillo were employed by the City of Vallejo Police
Department at the time of the alleged incident.
2

All typographical errors are as set forth in plaintiff’s declaration.
1

1

2. On July 29, 2015, the Court issued an order directing me notify
the Court whether (i) I wish to continue against Valley Police
Officer Bautista as the sole named defendant in this action, or (ii) I
wish to amend his complaint to add Corporal Estudillo as an
additional named defendant.

2
3
4

3. I am requesting that the Court to clarify whether (ii) means that I
will only be allowed to amend Corporal Estudillo if Officer
Bautista is a continued defendant or will my amendment be allowed
to list Corporal Estudillo only to the complaint.

5
6

4. Because my intentions is to bring action against the officer that
kicked me in my face there would be no need to seek litigation
against two defendants when there was only one who violated my
constitutional rights.

7
8
9

5. If I am allowed to file an amended complaint amending Brian
Estudillo only to my complaint that would be my chose.

10
11

(ECF No. 70-1 at 1-2.)

12

Plaintiff is hereby advised that the court will permit plaintiff to proceed on his motion to

13

amend, with the understanding that he now wishes to proceed solely against Corporal Estudillo.

14

In response to the court’s prior order to show cause, counsel for defendant Officer Bautista

15

indicated that “[i]n the event the court does move forward and adds Corporal Estudillo, counsel

16

will accept service on his behalf.” (ECF No. 66 at 3.) The court has therefore proceeded to

17

establish herein a briefing schedule on plaintiff’s motion to amend.

18

Accordingly, IT IS HEREBY ORDERED that, within twenty-one days of entry of this

19

order, proposed defendant Corporal Estudillo is directed to serve and file either an opposition or a

20

statement of non-opposition to plaintiff’s motion to amend. If Corporal Estudillo files an

21

opposition, plaintiff is granted seven days thereafter in which to file a reply.

22

Dated: August 28, 2015

23
24
garr0479.clarify

25
26
27
28
2