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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KIM EDWARD ROGERS,

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Plaintiff,

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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

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January 24 2017, seeking damages for allegedly having been arrested and incarcerated in

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violation of his federal Constitutional rights under the Fourth and Fourteenth Amendments. ECF

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No 1. On October 5, 2017 a hearing was held on defendants’ Motion to Dismiss plaintiffs

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complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)(lack of federal jurisdiction) and,

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in the alternative 12(b)(6)for failure to state a claim or adhere to the requirements for federal

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pleading found in Rule 8, that the action was barred pursuant to the statute of limitations, and

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further moved to strike pendent State claims on the ground that plaintiff had failed to exhaust his

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remedy under the State Tort Claims Act. ECF No. 30. In an Order and Findings and

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Recommendations filed on October 10 2017 this court recommended that plaintiff’s claims under

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42 U.S.C. section 200d and his 28 U.S.C. section 1983 claims be dismissed with leave to amend

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as to claims arising from the November 14, 2015 incident discussed in the Complaint and those
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claims based upon an earlier, 2013, incident be dismissed without leave to amend upon the

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adoption of the recommendation by the district court. All other federal and state claims were

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recommended for dismissal without leave as well. ECF No. 43. Plaintiff was directed in this

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Order that he must plead the specific actions of each individual defendant with respect to the

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preserved civil rights claims under sections 2000d and 1983. Id. The matter was then referred to

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the district court judge assigned to the case. Id. The parties were given fourteen (14) days – until

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October 24, 2017, to file any objections to the Order and Findings and Recommendations. No

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objections were filed by either plaintiff or defendants. Plaintiff has also noticed a Motion for

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Preliminary Injunction on the same December 7 calendar. ECF No. 40.

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DISCUSSION

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Despite the fact that the plaintiff’s Complaint is in a sort of legal limbo, awaiting review

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and decision by the district court, defendants filed a new motion to dismiss based upon the

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allegations in the Complaint that is awaiting the district court’s adoption or rejection of the Order

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and Findings and Recommendations. Thus the Motion is premature – the district court may

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refuse to adopt this court’s recommendations, it may issue a wholly new Order based on its

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mandatory review of the file in the course of its consideration that would end the lawsuit, or it

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could adopt the recommendations in which case plaintiff would be required to file an Amended

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Complaint in conformity with the Order of October 10, 2017. Until these events have occurred

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the Motion to Dismiss is not ripe for review. For the same reasons plaintiff’s Motion for

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Preliminary Injunction is also premature.1

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1. Defendants’ Motion to Dismiss, ECF, No. 49, is VACATED as premature;

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2. Plaintiff’s Motion for Preliminary Injunction, ECF No. 40, is VACATED as

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premature;
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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.
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3. These matters will not be heard on the court’s December 7, 2017 hearing calendar.

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IT IS SO ORDERED.

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Dated: November 27, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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