Steward v. Thumser et al
ORDER signed by Magistrate Judge Kendall J. Newman on 3/7/2018 CONSTRUING 49 Motion as a request for clarification of the 2/15/2018 reassignment order. Plaintiff's request for an investigation is denied. (Henshaw, R)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:16-cv-1232 TLN KJN P
G. THUMSER, et al.,
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 28, 2018, plaintiff filed a document entitled, “Motion for a More Definite
Statement.” (ECF No. 49.) Despite such title, plaintiff complains that his case was suddenly and
without notice assigned to a different district judge, and that the reassignment order used a
different case caption, suggesting that there has been “an inadvertent oversight” or a violation of
plaintiff’s due process rights by the removal of the warden from this case. Plaintiff contends that
the order of reassignment “demands an investigation.” (ECF No. 49 at 3.)
Under Rule 12(e), a party may move for a more definite statement with respect to a
complaint that “is so vague or ambiguous that the party cannot reasonably prepare a response.”
Fed. R. Civ. P. 12(e); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (stating
that, “[i]f a pleading fails to specify the allegations in a manner that provides sufficient notice, a
defendant can move for a more definite statement under Rule 12(e) before responding”). Motions
pursuant to Rule 12(e) are generally “viewed with disfavor and are rarely granted[.]” E.E.O.C. v.
Alia Corp., 842 F. Supp. 2d 1243, 1250 (E.D. Cal. 2012).
Plaintiff’s concerns are not directed to a pleading filed by any defendant, and therefore is
not properly a motion for more definite statement. Rather, plaintiff is concerned about the
February 15, 2018 reassignment of his case to a different district judge by Chief Judge O’Neill,
and is therefore construed as a request for clarification. However, as the order of reassignment
indicated, the reassignment of plaintiff’s case was due to Judge Burrell taking senior status. Such
reassignment was among many other random reassignments due to the reduction in Judge
Burrell’s caseload. Such order of reassignment, including whether or not the reassignment order
was properly captioned, has no bearing on the merits of plaintiff’s case. Rather, this action
proceeds according to the court’s screening order which found that plaintiff’s second amended
complaint states potentially cognizable Eighth Amendment claims for relief against defendants
Olson, Harrison, Pompey, Tapiz, and Jones pursuant to 42 U.S.C. § 1983 and 28 U.S.C.
§ 1915A(b). (ECF No. 20.)
As noted by plaintiff, the instant action is stayed, and plaintiff shall refrain from filing any
further motions pending completion of the March 13, 2018 settlement conference.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion (ECF No. 49) is construed as a request for clarification of the
February 15, 2018 reassignment order; and
2. Plaintiff’s request for an investigation is denied.
Dated: March 7, 2018
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