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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 No. C 16-1056 WHA (PR) Plaintiff, For the Northern District of California United States District Court MICHAEL ALLEN, 11 ORDER ON PENDING MOTIONS 12 v. 13 14 15 H. CLEMENTE, J. BERRELLEZA, R. FERNANDEZ, (Dkt. No. 42, 46, 49, 53) Defendants. / 16 17 Pursuant to the stipulation filed by the parties, the claims against defendant R. 18 Fernandez are DISMISSED with prejudice. Fernandez’s motions for summary judgment and for 19 an extension of time (ECF Nos. 42, 46) are DENIED. Plaintiff’s motion for an extension of time 20 (ECF No. 51) to oppose the motion for summary judgment of defendants Clemente and 21 Berreleza is GRANTED to and including May 19, 2017. 22 Defendants’ motion to strike plaintiff’s first amended complaint (ECF No. 53) is 23 DENIED. First, plaintiff’s failure to obtain leave to file the amended complaint is excused based 24 upon his pro se and incarcerated status. See Fed. R. Civ. P. 15(a). Prejudice to defendants 25 Clemente and Berrelleza is negated by the fact that the amended complaint makes no new 26 allegations against them. Rather, the amended complaint simply adds a new defendant — 27 Correctional Officer Vasques — and alleges that he did the same thing as defendants Berrelleza 28 and Clemente. Thus, Vasques is similarly situated to defendants Berrelleza and Clemente with 1 respect to liability on plaintiff’s claims. The pending summary judgment motion by Berrelleza 2 and Clemente is construed as pertaining to the first amended complaint, and following ruling on 3 that motion, defendant Vasques will be ordered served, if necessary. 4 IT IS SO ORDERED. 5 Dated: May 11 6 , 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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