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Patrick Jackson v. Shankari Reddy

October 23, 2012

PATRICK JACKSON, PLAINTIFF,
v.
SHANKARI REDDY, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's original complaint, filed January 17, 2012. On July 2, 2012, defendants Lysak, Kansier, Stocker, Reddy, and Jennings filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On August 3, 2012, plaintiff filed a motion for an extension of time to respond to the motion to dismiss. On August 17, 2012, plaintiff filed a proposed first amended complaint. On August 20, 2012, defendants filed a motion for a court order directing plaintiff to refile and reserve the first amended complaint, for the court to screen the first amended complaint, and for an extension of time to respond thereto. On August 20, 2012, plaintiff filed exhibits to append to the proposed first amended complaint. Finally, on September 10, 2012, plaintiff filed a request for the court to accept the first amended complaint and to send a copy of the first amended complaint and the exhibits filed August 20, 2012 to defendants.

Rule 15 of the Federal Rules of Civil Procedures provides in relevant part that a party may amend a pleading once as a matter of right twenty-one days after service of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b). See Fed. R. Civ. P. 12(a)(1). Otherwise, amendment must be with the written consent of the opposing party or leave of court. See Fed. R. Civ. P. 12(a)(2). The court construes defendants' August 20, 2012 motion as written consent to amendment of the complaint. Good cause appearing, plaintiff's September 10, 2012 request will be granted. The amended complaint will be comprised of the first amended complaint filed August 13, 2012 (Docket No. 18) and the exhibits filed August 20, 2012 (Docket No. 22).

The court has screened the first amended complaint pursuant to 28 U.S.C. § 1915A. The amended complaint states a cognizable claim for relief against defendants Lysak, Kansier, Stocker, Reddy, and Jennings pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) . If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. Accordingly, said defendants will be directed to respond to the first amended complaint, and their request for an extension of time to do so will be granted. Good cause appearing, the Clerk of the Court will be directed to send a copy of the first amended complaint and exhibits thereto to counsel for defendants. Plaintiff will not be required to reserve said documents on defendants.

Defendants' July 2, 2012 motion to dismiss and plaintiff's August 3, 2012 motion for extension of time are mooted by this order and will therefore be denied.

Finally, in light of Woods v. Carey, 684 F.3d 934 (9th Cir. 2012, and good cause appearing, the court will by this order set additional notice requirements for any defense motion to dismiss for failure to exhaust administrative remedies and/or for summary judgment.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Defendants' July 2, 2012 motion to dismiss (Docket No. 15) is denied as moot;

2. Plaintiff's August 3, 2012 motion for extension of time (Docket No. 17) is denied as moot;

3. Defendants' August 20, 2012 motion (Docket No. 21) is granted in part and denied in part;

4. Plaintiff's September 10, 2012 request (Docket No. 23) is granted; 5. This action shall proceed on plaintiff's first amended complaint, which is comprised of the pleading filed August 13, 2012 (Docket No. 18) and the exhibits filed August 20, 2012 (Docket No. 22);

6. The first amended complaint states a cognizable claim for relief against defendants Lysak, Kansier, Stocker, Reddy, and Jennings;

7. The Clerk of the Court is directed to send a copy of plaintiff's first amended complaint (Docket Nos. 18 and 22) to counsel for defendants;

8. Defendants Lysak, Kansier, Stocker, Reddy, and Jennings shall file and serve a response to the first amended complaint within thirty days from the date of this order;

9. If any defendant in this action moves to dismiss for failure to exhaust administrative remedies, defendant must contemporaneously serve with the motion, but in a separate document, a copy of the attached Wyatt Notice. ...


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