Filed: May 04, 2017
Latest Update: May 04, 2017
Summary: ORDER DENYING MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT PEREZ-HERNANDEZ, WITH LEAVE TO AMEND (ECF No. 208.) PLAINTIFF'S OPPOSITION OR STATEMENT OF NON-OPPOSITION DUE ON OR BEFORE July 10, 2017 DEFENDANT'S REPLY DUE ON OR BEFORE July 21, 2017 GARY S. AUSTIN , Magistrate Judge . I. BACKGROUND Robin Dasenbrock ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. 1983. Plaintiff filed the Complaint commencing this action on No
Summary: ORDER DENYING MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT PEREZ-HERNANDEZ, WITH LEAVE TO AMEND (ECF No. 208.) PLAINTIFF'S OPPOSITION OR STATEMENT OF NON-OPPOSITION DUE ON OR BEFORE July 10, 2017 DEFENDANT'S REPLY DUE ON OR BEFORE July 21, 2017 GARY S. AUSTIN , Magistrate Judge . I. BACKGROUND Robin Dasenbrock ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. 1983. Plaintiff filed the Complaint commencing this action on Nov..
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT PEREZ-HERNANDEZ, WITH LEAVE TO AMEND (ECF No. 208.)
PLAINTIFF'S OPPOSITION OR STATEMENT OF NON-OPPOSITION DUE ON OR BEFORE July 10, 2017
DEFENDANT'S REPLY DUE ON OR BEFORE July 21, 2017
GARY S. AUSTIN, Magistrate Judge.
I. BACKGROUND
Robin Dasenbrock ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on November 14, 2011. (ECF No. 1.) On November 29, 2012, Plaintiff filed the First Amended Complaint. (ECF No. 16.) This case now proceeds with Plaintiff's Second Amended Complaint filed on September 8, 2015, against defendants Dr. A. Enenmoh, Correctional Officer Perez-Hernandez,1 Nurse Page, and Nurse Adair, on Plaintiff's claims for violation of the Eighth Amendment and related negligence. (ECF No. 140.)
On October 21, 2016, defendant Perez-Hernandez ("Defendant") filed a motion for summary judgment. (ECF No. 208.) On December 1, 2016, Plaintiff filed an opposition to the motion. (ECF Nos. 214-217.) On December 7, 2016, Defendant filed a reply to the opposition. (ECF No. 218.)
II. DEFENDANT'S MOTION
Defendant's motion for summary judgment is based in part on the allegations in the First Amended Complaint filed on November 29, 2012 (ECF No. 16).2 However, the Second Amended Complaint, filed on September 8, 2015, is now the operative complaint in this action. (ECF No. 140.) For this reason, Defendant's motion for summary judgment shall be denied, with leave to amend. Plaintiff shall be granted time to file an opposition to the amended motion for summary judgment, and Defendant shall be granted time to file a reply to the opposition. As discussed in the court's order of April 13, 2017, the court shall consider only one opposition and one reply. (ECF No. 223 at 2:3-15.) Local Rule 230(l).
III. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Defendant Perez-Hernandez's motion for summary judgment, filed on December 21, 2016, is DENIED with leave to amend on or before June 16, 2017;
2. Plaintiff shall file an opposition, or a notice non-opposition, to the amended motion on or before July 10, 2017;
3. Defendant's reply to Plaintiff's opposition, if any, shall be filed on or before July 21, 2017; and
4. The court shall consider only one opposition to the amended motion and one reply to the opposition. Local Rule 230(l).
IT IS SO ORDERED.
