Sekona v. Custino, et al.

Filing 161

ORDER signed by Magistrate Judge Dennis M. Cota on 03/30/20 GRANTING 153 Motion for leave to file a motion for judgment on the pleadings and GRANTING 156 Motion for Extension of time to file an opposition to defendants motion. Defendants motion for judgment on the pleadings, 154 , is deemed properly filed. Plaintiffs opposition to defendants motion, 158 and 159 is deemed timely. (Plummer, M) Modified on 3/31/2020 (Plummer, M).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ETUARTE SEKONA,

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Plaintiff,

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No. 2:16-CV-0517-JAM-DMC-P

v.

ORDER

F. CUSTINO,

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Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the Court is defendant’s motion for leave to file a second

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dispositive motion, ECF No. 153.
Previously, this action proceeded against two defendants – Custino and Snow. On

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May 24, 2019, both defendants filed a motion for summary judgment. See ECF No. 118.

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Ultimately, on November 21, 2019, the motion was granted as to defendant Snow but denied as to

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plaintiff’s Eighth Amendment safety claim against defendant Custino. See ECF No. 143. On

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February 20, 2020, defendant Custino filed a designation of counsel for service upon the

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reassignment of the case to new counsel at the California Attorney General’s Office. See ECF

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No.151.

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According to defendant’s current counsel, upon being assigned the case, he

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conducted a review and discovered that plaintiff’s claim against defendant may be barred by res

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judicata. Defendant states that allowing a second dispositive motion on the issue before trial

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could result in a substantial savings of time. Defendant also argues that plaintiff would not be

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prejudiced by an early pre-trial determination of the issue because the defense would be disclosed

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in pre-trial status reports and he would thus have to prepare for such a defense at trial even absent

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a second dispositive motion. Defendant has filed concurrently with his motion a motion for

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judgment on the pleadings. See ECF No. 154.
Plaintiff has not opposed defendant’s request for leave to file a second dispositive

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motion, specifically a motion for judgment on the pleadings. Instead, plaintiff has filed an

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opposition to defendant’s motion for judgment on the pleadings. See ECF Nos. 158 and 159.

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Defendant has filed a reply. See ECF No. 160.

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Because plaintiff has not opposed the request to file a second dispositive motion,

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and good cause appearing therefor, defendant’s motion for leave to file a motion for judgment on

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the pleadings will be granted. Defendant’s motion for judgment on the pleadings, filed on

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February 27, 2020, will be deemed properly filed. Plaintiff’s motion for an extension of time to

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file an opposition to defendant’s motion will be granted and plaintiff’s opposition, filed on March

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23, 2020, will be deemed timely. Defendant’s fully-briefed motion for judgment on the pleadings

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will be addressed by separate findings and recommendations.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Defendant’s motion for leave to file a motion for judgment on the

pleadings, ECF No. 153, is granted;
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Defendant’s motion for judgment on the pleadings, ECF No. 154, is

deemed properly filed;
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Plaintiff’s motion for an extension of time to file an opposition to

defendant’s motion, ECF No. 156, is granted; and
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Plaintiff’s opposition to defendant’s motion, ECF Nos. 158 and 159, is

deemed timely.

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Dated: March 30, 2020
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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