Gifford v. Puckett, et al

Filing 55

ORDER signed by Magistrate Judge Gregory G. Hollows on 4/6/17 ORDERING Plaintiff's Motion for Extension of Time to respond to the motions to dismiss, 48 , is DENIED as the lack of an operative complaint moots the motions; Plaintiff's Motion for Early Discovery contained within 48 , is DENIED as there is no operative complaint pending; the matters set forth in paragraphs 1 and 2 from the court's calendar of 5/18/17 are VACATED from calendar; All Motions to Dismiss, ECF Nos. 28 , 32 , 34 , 35 , 36 and 46 are VACATED from calendar as moot; the default entered re Lee Buckley, 52 , is STRICKEN as no default should be entered on the now stricken Second Amended Complaint filed in violation of the court's previous orders. (Becknal, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER GIFFORD, Plaintiff, 12 13 14 No. 2:16-cv-0955 KJM GGH v. ORDER ROBERT PUCKETT, SR., et al., Defendants. 15 16 17 Plaintiff seeks an extension of time of 60 days to file his opposition to Motions to Dismiss 18 pending on this Court’s May 18, 2017, hearing calendar. He also seeks permission to take pre- 19 Answer discovery. 20 21 PROCEDURAL HISTORY Plaintiff filed his 84 page complaint together with 40 pages of exhibits alleging civil rights 22 violations by several individuals and institutional defendants on May 5, 201, ECF No. 1, together 23 with a Motion to Proceed In Forma Pauperis. ECF No. 2. He was granted IFP status by 24 Magistrate Judge Allison Claire on May 26, 2016. ECF No. 3. In her order granting that status, 25 the Magistrate Judge also dismissed the complaint and gave the plaintiff 30 days to amend in 26 accordance with instructions given him in the Order. Id. 27 On June 15, 2016, plaintiff filed both objections to the court’s order, ECF No. 4 and a 28 First Amended Complaint. ECF No. 5. On June 20, 2016, Magistrate Judge Claire issued an 1 1 Order dismissing this Complaint with 30 days leave to amend noting that the Amendment was 2 “nearly identical” to the original Compliant, again providing guidance on how to plead 3 sufficiently and limited any amendment filed to 25 pages in length. ECF No. 6. 4 On July 5, 2016 plaintiff filed Objections to the Order in which he declined to amend his 5 complaint which he argued met the requirements of Federal Rule of Civil Procedure 8, upon 6 which the Magistrate based her order in principal part, ECF No. 7, and on August 24, 2016 the 7 Magistrate granted plaintiff an additional 30 days to file his amendment, and imposing the same 8 25 page limit on an further pleading he chose to file. ECF No. 8. 9 On September 20, 2016 plaintiff sought to withdraw his request for IFP status and paid the 10 court’s filing fee, ECF No. 1. On December 5, 2016, the Magistrate Judge granted permission to 11 withdraw from IFP status and gave the plaintiff an additional 30 days to file a Second Amended 12 Complaint. ECF No. 11. On December 29, 2016 plaintiff sought a 30 day extension of time to 13 file his second amended complaint, ECF No. 12, and that request was granted by an Order issued 14 January 4, 2017. ECF No. 13. 15 On February 1, 2017 plaintiff submitted his Second Amended Complaint which ran to 148 16 pages. ECF No. 14, and summons were issued to the named defendants. ECF No. 15. On March 17 21, 2017, Motions to Dismiss were served by counsel for various groups of defendants. ECF 18 Nos. 28, 32, 34, 35 and 36.1 19 On March 29, 2017 District Judge Kimberly Mueller issued an order that transferred this 20 case from Judge Nunley’s docket to hers and from Magistrate Judge Claire’s docket to the 21 undersigned. ECF No. 45.2 On the same day, a new Motion to Dismiss the Second Amended 22 Complaint based upon which summonses had been issued which included a 22 page 23 Memorandum of Points and Authorities and 179 pages for which defendants sought Judicial 24 //// 25 1 26 27 28 On March 24, 20017 plaintiff filed Requests for Entry of Default Judgment against various groups of defendants, presumably before he received their Motions to Dismiss. ECF Nos. 40, 41, 42, 43 and 44. 2 The related case was Harrell v. Hornbrook CSD, et al., 14-1595 KJM GGH; the order relating these two cases utilized the 14-1595 caption. Most of the order, ECF No. 45, involved the Harrell case. 2 1 Notice. (ECF No. 46) It is this Motion that is the subject of plaintiff’s request for an additional 2 60 days to respond, and for early discovery. 3 4 5 DISCUSSION MOTION FOR EXTENSION OF TIME This motion will be denied as the District Court’s Order of March 29, 2017 at ECF No. 45 6 effectively dismissed the presently pending Amended Complaint and directed a new filing not to 7 exceed 25 pages. Therefore there is no pending complaint upon which this court may act. 8 MOTION FOR EARLY DISCOVERY 9 For the same reason as the extension of time request is denied, this Motion will also be 10 denied, i.e., there is no pending Complaint as to which any discovery is appropriate at this time. 11 PENDING MOTIONS TO DISMISS AND STRIKING THE SECOND AMENDED COMPLAINT 12 The Second Amended Complaint, as it pertains to page length, is in direct violation of 13 Magistrate Judge Claire’s orders. This court will not ignore this violation and adjudicate the 14 merits of the Second Amended Complaint. The Second Amended Complaint in this action is 15 stricken with one more opportunity to comply with the previous order limiting any amended 16 complaint to 25 pages. An amended complaint not exceeding 25 pages shall be filed no later than 17 April 28, 2017. No further extensions of time will be approved, and failure to timely file the 18 amended complaint as ordered herein shall result in a recommendation that the entire motion be 19 dismissed. 20 21 As the undersigned has stricken the Second Complaint and ordered the filing of a third amended complaint, the motions to dismiss are vacated from calendar. 22 In light of the foregoing, IT IS THEREFOR ORDERED: 23 1. 24 25 26 27 28 Plaintiff’s Motion for Extension of Time to respond to the motions to dismiss, ECF No. 48, is DENIED as the lack of an operative complaint moots the motions; 2. Plaintiff’s Motion for Early Discovery contained within ECF No. 48, is DENIED as there is no operative complaint pending; 3. The matters set forth in paragraphs 1 and 2 from the court’s calendar of May 18, 2017 are vacated from calendar; 3 1 4. 2 calendar as moot. 3 5. All Motions to Dismiss, ECF Nos. 28, 32, 34, 35, 36 and 46 are vacated from The default entered regarding Lee Buckley, ECF No. 52, is stricken as no default 4 should be entered on the now stricken Second Amended Complaint filed in violation of the 5 court’s previous orders. 6 . 7 Dated: April 6, 2017 8 IT IS SO ORDERED. /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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