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Gomez v. Chenik

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 4, 2009

SILVESTER GOMEZ, PLAINTIFF,
v.
CHENIK, M.D., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge

ORDER

On April 27, 2009, Defendants Thirakomen and Hasadsri ("Defendants") filed a motion for summary judgment, (Doc. 63), without mention of Plaintiff's allegation that Defendant Hasadsri "violated [his] Fourteenth Amendment right to due process when [Defendant Hasadsri] intentionally, willfully, maliciously and deliberately delayed and withheld Plaintiff[']s C.D.C. 602." (Doc. 1 at 29 ¶ 126). Accordingly, on May 1, 2009, this Court directed Defendants to advise whether they intend to move for summary judgment on Plaintiff's Fourteenth Amendment due process claim. (Doc. 67). On May 4, 2009, Defendants requested clarification of the May 1, 2009, order because they read this Court's service order as eliminating Plaintiff's Fourteenth Amendment due process claim from the lawsuit because it did not expressly identify it in the service order.

Pursuant to 28 U.S.C. § 1915A(b), "the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint - - (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." In the screening order, this Court did not dismiss Plaintiff's Fourteenth due process claim from the lawsuit, but rather dismissed four of the five named Defendants associated with that claim. Defendants' assumption, therefore, is unwarranted. (Doc. 14). Accordingly, this Court construes Defendants' request for clarification as a clear indication that they seek summary judgment of Plaintiff's Fourteenth Amendment due process claim.

If Defendants wish to supplement their response as to why summary judgment is warranted as to Plaintiff's Fourteenth Amendment due process claim, Defendants are directed to file an additional response on or before May 8, 2009.

IT IS SO ORDERED.

20090504

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