Rogers v. Richard et al

Filing 55

ORDER vacating 40 Motion for Preliminary Injunction and 49 Motion to Dismiss signed by Magistrate Judge Gregory G. Hollows on 11/27/17: These matters will not be heard on the courts December 7, 2017 hearing calendar. (Kaminski, H)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KIM EDWARD ROGERS, 11 Plaintiff, 12 13 14 15 16 17 No. 17-cv-00149 JAM-GGH v. ORDER M. RICHARD CHP Captain Commander, et al. Defendant. PROCEDURAL BACKGROUND Plaintiff, appearing in pro se and in forma pauperis, filed this civil rights complaint on 18 January 24 2017, seeking damages for allegedly having been arrested and incarcerated in 19 violation of his federal Constitutional rights under the Fourth and Fourteenth Amendments. ECF 20 No 1. On October 5, 2017 a hearing was held on defendants’ Motion to Dismiss plaintiffs 21 complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)(lack of federal jurisdiction) and, 22 in the alternative 12(b)(6)for failure to state a claim or adhere to the requirements for federal 23 pleading found in Rule 8, that the action was barred pursuant to the statute of limitations, and 24 further moved to strike pendent State claims on the ground that plaintiff had failed to exhaust his 25 remedy under the State Tort Claims Act. ECF No. 30. In an Order and Findings and 26 Recommendations filed on October 10 2017 this court recommended that plaintiff’s claims under 27 42 U.S.C. section 200d and his 28 U.S.C. section 1983 claims be dismissed with leave to amend 28 as to claims arising from the November 14, 2015 incident discussed in the Complaint and those 1 1 claims based upon an earlier, 2013, incident be dismissed without leave to amend upon the 2 adoption of the recommendation by the district court. All other federal and state claims were 3 recommended for dismissal without leave as well. ECF No. 43. Plaintiff was directed in this 4 Order that he must plead the specific actions of each individual defendant with respect to the 5 preserved civil rights claims under sections 2000d and 1983. Id. The matter was then referred to 6 the district court judge assigned to the case. Id. The parties were given fourteen (14) days – until 7 October 24, 2017, to file any objections to the Order and Findings and Recommendations. No 8 objections were filed by either plaintiff or defendants. Plaintiff has also noticed a Motion for 9 Preliminary Injunction on the same December 7 calendar. ECF No. 40. 10 DISCUSSION 11 Despite the fact that the plaintiff’s Complaint is in a sort of legal limbo, awaiting review 12 and decision by the district court, defendants filed a new motion to dismiss based upon the 13 allegations in the Complaint that is awaiting the district court’s adoption or rejection of the Order 14 and Findings and Recommendations. Thus the Motion is premature – the district court may 15 refuse to adopt this court’s recommendations, it may issue a wholly new Order based on its 16 mandatory review of the file in the course of its consideration that would end the lawsuit, or it 17 could adopt the recommendations in which case plaintiff would be required to file an Amended 18 Complaint in conformity with the Order of October 10, 2017. Until these events have occurred 19 the Motion to Dismiss is not ripe for review. For the same reasons plaintiff’s Motion for 20 Preliminary Injunction is also premature.1 21 In light of the foregoing, IT IS HEREBY ORDERED that: 22 1. Defendants’ Motion to Dismiss, ECF, No. 49, is VACATED as premature; 23 2. Plaintiff’s Motion for Preliminary Injunction, ECF No. 40, is VACATED as 24 25 premature; //// 26 27 28 1 The undersigned also observes that the likelihood of any irreparable harm to plaintiff is minimal in that plaintiff has apparently not been stopped by defendants, or a person acting on their behalf, since 2016. 2 1 3. These matters will not be heard on the court’s December 7, 2017 hearing calendar. 2 IT IS SO ORDERED. 3 4 Dated: November 27, 2017 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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