Lester v. San Francisco Sheriff Department et al

Filing 32

ORDER by Judge James Donato denying 28 Motion to Dismiss (lrc, COURT STAFF) (Filed on 3/26/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEPHEN DWAYNE LESTER,

Case No. 13-cv-01120-JD

Plaintiff,
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v.

ORDER DENYING MOTION TO
DISMISS

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SCOTT NEU, et al.,

Re: Dkt. No. 28

Defendants.

United States District Court
Northern District of California

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Plaintiff, a former prisoner proceeding pro se, has brought a civil rights action under 42

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U.S.C. § 1983. This action proceeds on the second amended complaint (Docket No. 24) alleging

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that defendants Neu and Tilton used excessive force against plaintiff on June 4, 2010. Defendants

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have filed a motion to dismiss asserting that the complaint is untimely. Plaintiff has filed an

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opposition, and defendants have filed a reply.

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Plaintiff previously proceeded in another case with the same allegations, but only against

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defendant Neu. See Lester v. Nue, 10-cv-5365-WHA. Case 10-cv-5365-WHA was dismissed

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without prejudice on January 4, 2013, due to plaintiff’s repeated failure to follow Court orders and

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the Federal Rules of Civil Procedure with respect to a deposition. The case was dismissed without

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prejudice to plaintiff’s refilling his claims in a new action. See Docket No. 73 in 10-cv-5365-

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WHA. Plaintiff filed this new action on March 12, 2013.

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While this action would be untimely based on the applicable statute of limitations, the

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previous action was timely and both actions contain the same underlying claim. Because plaintiff

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relied on and followed the Court’s instructions in filing a new case, the Court finds this action to

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be timely. However, should plaintiff continue his pattern of obstructing defendants’ attempts to

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depose him, this case will be dismissed with prejudice.1
CONCLUSION

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The motion to dismiss (Docket No. 28) is DENIED.

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2.

Within 60 days of the date this Order is filed, defendants shall either file a motion

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for summary judgment or a notice that the case cannot be resolved by such a motion. All other

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provisions of the Court’s June 25, 2014, Order (Docket No. 27), that are not in conflict with this

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Order, remain in effect including the provisions governing a motion for summary judgment,

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discovery, and the keeping the Court updated on any changes in the parties’ addresses.
IT IS SO ORDERED.

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Dated: March 26, 2015
______________________________________
JAMES DONATO
United States District Judge

United States District Court
Northern District of California

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Defendants many attempts to depose plaintiff were discussed in detail in Docket No. 73 in 10-cv5365-WHA.
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEPHEN DWAYNE LESTER,

Case No. 13-cv-01120-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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SCOTT NEU, et al.,
Defendants.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 3/26/2015, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Stephen Dwayne Lester ID: 4907982
P.O. Box 883922
San Francisco, CA 94188

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Dated: 3/26/2015

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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