Lavery v. Dhillon

Filing 131

ORDER signed by Magistrate Judge Allison Claire on 5/1/2017 SUMMARILY GRANTING 124 and 125 Motions to Dismiss; GRANTING 129 Motion to Amend the Complaint; and VACATING motions hearing scheduled for 5/17/2017. Plaintiff's Second Amended Complaint to be filed within 30 days of this order's entry. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LAVERY,

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No. 2:13-cv-2083 MCE AC P

Plaintiff,
v.

ORDER

B. DHILLON et al.,
Defendants.

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Plaintiff is a state prisoner who, represented by counsel, is proceeding with a civil rights

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action pursuant to 42 U.S.C. § 1983. On March 23, 2017, defendants filed two motions to

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dismiss – one on behalf of defendant Dhillon and another on behalf of the remaining defendants.

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ECF Nos. 124 & 125. A hearing for these motions was set for May 17, 2017. ECF No. 128. On

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April 29, 2017, however, plaintiff’s counsel filed a motion to amend complaint (ECF No. 129)

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and a statement of non-opposition to defendants’ pending motions (ECF No. 130).

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In light of plaintiff’s non-opposition, the court will summarily grant defendants’ motions

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to dismiss. The court also grants plaintiff’s motion to amend and gives him leave to submit a

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second amended complaint within thirty days of this order’s entry. See Cook, Perkiss & Liehe,

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Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990) (holding that, where a

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court dismisses for failure to state a claim, leave to amend should be granted unless the court

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“determines that the pleading could not possibly be cured by the allegation of other facts.”).
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IT IS THEREFORE ORDERED that:

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1.

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Defendants’ motions to dismiss (ECF Nos. 124 & 125) are summarily GRANTED

and plaintiff’s first amended complaint (ECF No. 30) is DISMISSED without prejudice.
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Plaintiff’s motion to amend complaint (ECF No. 129) is GRANTED. Plaintiff

should file his second amended complaint within thirty days of this order’s entry.
3.

The motions hearing scheduled for May 17, 2017 is vacated.

DATED: May 1, 2017

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