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Leonardo Donte v. D. Swingle

March 15, 2011

LEONARDO DONTE, PLAINTIFF,
v.
D. SWINGLE, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is presently housed at Salinas Valley State Prison in Soledad, California. Before the court is defendant's motion to dismiss. Also before the court is defendant's ex parte motion to vacate the deadline for dispositive motions.

FACTUAL AND PROCEDURAL BACKGROUND

On January 26, 2010, plaintiff filed a complaint against M. French and D. Swingle in the Northern District of California. Following transfer to this district, plaintiff filed the operative first amended complaint ("FAC") on March 10, 2010. Therein, plaintiff claims his Eighth Amendment rights were violated when he received inadequate medical attention while housed at High Desert State Prison ("HDSP") following an altercation that caused injury to his jaw. On May 25, 2010, the FAC was screened by the undersigned and found to state a cognizable claim only as to defendant French. On June 22, 2010, plaintiff filed a motion to amend the FAC; plaintiff sought to clarify the relief requested.*fn1 That motion was granted on July 21, 2010.

On August 20, 2010, defendant French filed an answer to the FAC. On September 1, 2010, a discovery and scheduling order was issued. Discovery concluded on December 17, 2010. The deadline for filing dispositive motions was March 11, 2011.

On November 10, 2010, defendant French filed a motion to dismiss for failure to exhaust administrative remedies. On December 27, 2010, plaintiff filed an opposition. On December 28, 2010, defendant filed a reply. On January 12, 2011, plaintiff sought an extension of time to file a sur-reply. Plaintiff has not filed a sur-reply.

On February 23, 2011, defendant filed an ex parte request to vacate the March 11, 2011 deadline for filing dispositive motions until two months after consideration of the instant motion to dismiss.

On February 28, 2011, plaintiff filed a motion for an order granting plaintiff access to the law library.

STANDARDS FOR A MOTION TO DISMISS

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Although the court previously issued a screening order that expressly stated that plaintiff stated a cognizable claim against defendant, the court finds that this finding does not foreclose defendant's right to bring a motion to dismiss on the same grounds. See Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007) (finding that the screening and dismissal procedure under the Prison Litigation Reform Act "is cumulative of, not a substitute for, any subsequent Rule 12(b)(6) motion that the defendant may choose to bring"). The court will consider the merits of defendant's motion to dismiss.

On June 9, 2010, plaintiff received the notice required by Wyatt v. Terhune, 305 F.3d 1033 (9th Cir.2002), for opposing a motion to dismiss for failure to exhaust administrative remedies pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.

DISCUSSION

1. Timing of Motion to Dismiss

The first issue that must be addressed concerns the timing of ...


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