Allen v. Clemente et al

Filing 57

ORDER ON PENDING MOTIONS by Judge William Alsup denying 42 Motion for Extension of Time to File; denying 46 Motion for Summary Judgment; granting 49 Stipulation; granting 51 Motion for Extension of Time to File Response/Reply re 44 MOTION for Summary Judgment ; denying 53 Motion to Strike. Responses due by 5/19/2017. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 5/11/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 16-1056 WHA (PR)

Plaintiff,
For the Northern District of California

United States District Court

MICHAEL ALLEN,
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ORDER ON PENDING MOTIONS

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v.
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H. CLEMENTE, J. BERRELLEZA, R.
FERNANDEZ,

(Dkt. No. 42, 46, 49, 53)

Defendants.
/

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Pursuant to the stipulation filed by the parties, the claims against defendant R.

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Fernandez are DISMISSED with prejudice. Fernandez’s motions for summary judgment and for

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an extension of time (ECF Nos. 42, 46) are DENIED. Plaintiff’s motion for an extension of time

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(ECF No. 51) to oppose the motion for summary judgment of defendants Clemente and

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Berreleza is GRANTED to and including May 19, 2017.

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Defendants’ motion to strike plaintiff’s first amended complaint (ECF No. 53) is

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DENIED. First, plaintiff’s failure to obtain leave to file the amended complaint is excused based

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upon his pro se and incarcerated status. See Fed. R. Civ. P. 15(a). Prejudice to defendants

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Clemente and Berrelleza is negated by the fact that the amended complaint makes no new

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allegations against them. Rather, the amended complaint simply adds a new defendant —

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Correctional Officer Vasques — and alleges that he did the same thing as defendants Berrelleza

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and Clemente. Thus, Vasques is similarly situated to defendants Berrelleza and Clemente with

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respect to liability on plaintiff’s claims. The pending summary judgment motion by Berrelleza

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and Clemente is construed as pertaining to the first amended complaint, and following ruling on

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that motion, defendant Vasques will be ordered served, if necessary.

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IT IS SO ORDERED.

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Dated: May 11
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, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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