Moore v. Tesluk et al

Filing 47

ORDER signed by Magistrate Judge Kendall J. Newman on 9/28/2017 DENYING 41 Motion to Amend; GRANTING 43 Motion to Opt Out of the Post-Screening ADR Project by defendants Fox and Win and joined 45 by defendant Tesluk; and ORDERING defendant Nguyen to inform the court, within 14 days, whether she is interested in participating in a settlement conference with Plaintiff at this time or whether she wishes to postpone the settlement conference to a later date. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN MOORE,

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No. 2: 16-cv-2268 GEB KJN P
Plaintiff,

v.

ORDER

G. TESLUK, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Two matters are pending before the court.

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Requests to Opt out of Post-Screening ADR Project

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On January 26, 2017, the undersigned ordered service of defendants Fox, Nguyen, Tesluk
and Win. (ECF No. 13).
On August 10, 2017, the undersigned referred this action to the Post-Screening ADR

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Project. (ECF No. 38.) On September 11, 2017, defendants Win and Fox filed a motion to opt

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out of the Post-Screening ADR Project. (ECF No. 43.) On September 12, 2017, defendant

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Tesluk, represented by separate counsel, filed a request to join the motion to opt out of the Post-

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Screening ADR Project. (ECF No. 45.) On September 12, 2017, defendant Nguyen, also

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represented by separate counsel, filed a notice regarding judge election for the Post-Screening

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ADR Project. (ECF No. 44.)
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Good cause appearing, the requests to opt out of the Post-Screening ADR Project by

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defendants Win, Fox and Tesluk are granted. Defendant Nguyen shall inform the court within

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fourteen days whether she is interested in participating in a settlement conference with plaintiff at

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this time, or whether she wishes to postpone the settlement conference to a date to be determined

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at a later stage of these proceedings.

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Plaintiff’s Motion to Amend

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On August 14, 2017, plaintiff filed a motion for leave to amend. (ECF No. 41.)

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Plaintiff’s motion was not, however, accompanied by a proposed amended complaint. As a

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prisoner, plaintiff’s pleadings are subject to evaluation by this court pursuant to the in-forma

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pauperis statute. See 28 U.S.C. § 1915A. Because plaintiff did not submit a proposed amended

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complaint, the court is unable to evaluate it. For this reason, the motion to amend is denied.
It also appears that plaintiff’s motion to amend may be based on a misunderstanding. On

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August 4, 2017, the court granted defendant Tesluk’s motion to dismiss plaintiff’s state law claim

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made against him. (ECF No. 36.) The court also ordered defendant Tesluk to file a response to

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plaintiff’s Eighth Amendment claim within twenty days. (Id.) On August 10, 2017, defendant

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Tesluk filed an answer addressing plaintiff’s Eighth Amendment claim. (ECF No. 37.)

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After reviewing the motion to amend, it appears that plaintiff may believe that the court

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dismissed plaintiff’s entire action against defendant Tesluk. As discussed above, the court

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granted the motion to dismiss plaintiff’s state law claim against defendant Tesluk. This action

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proceeds on plaintiff’s Eighth Amendment claim against defendant Tesluk.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The motion to opt of the Post-Screening ADR Project by defendants Fox and Win

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(ECF No. 43), and joined by defendant Tesluk (ECF No. 45), is granted;

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2. Within fourteen days of the date of this order, defendant Nguyen shall inform the court

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whether she is interested in participating in a settlement conference with plaintiff at this time, or

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whether she wishes to postpone the settlement conference to a date to be determined at a later

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stage of these proceedings;

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3. Plaintiff’s motion to amend (ECF No. 41) is denied.
Dated: September 28, 2017

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Mo2268.ord
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