UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
October 30, 2012
RAHN G. THOMPSON,
STATE OF CALIFORNIA, ET AL.,
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER FOR CLARIFICATION OF MOTION TO DISMISS (Doc. 52.) DEADLINE FOR DEFENDANTS TO RESPOND: TEN CALENDAR DAYS
Rahn G. Thompson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 5, 2007. (Doc. 1.) This action now proceeds with the Second Amended Complaint filed on November 10, 2009, against defendant Tucker for subjecting Plaintiff to adverse conditions of confinement; against defendants Tucker, Green, Lee, Rincon, Hernandez, Deathridge, and Huckabay for failing to protect Plaintiff; against defendants Tucker, Green, and Huckabay for retaliating against Plaintiff; and against defendants Tucker, Thompson, and Melendez for using excessive force against Plaintiff.*fn1 (Doc. 25.)
On September 27, 2011, Defendants filed a motion to dismiss for failure to exhaust administrative remedies and failure to state a claim for retaliation. (Docs. 52-58.) On November 21, 2011, Plaintiff filed an opposition to the motion. (Doc. 61.) On December 6, 2011, Defendants filed a reply. (Doc. 66.)
II. DEFENDANTS' MOTION TO DISMISS
Upon review of Defendants' motion to dismiss, the Court finds inconsistencies that require clarification by Defendants.
First, it is not clear whether defense counsel represents defendant Hernandez at this stage of the proceedings. There are nine defendants in this case, Deathridge, Greene, Melendez, Hernandez, Huckabay, Lee, Rincon, Thompson, and Tucker. The front page and the signature page of the motion to dismiss indicate that defense counsel represents all of the defendants except defendant Hernandez. (Motion, Doc. 52 at 1, 17.) However, Defendants make arguments on behalf of defendant Hernandez in the motion to dismiss. (Id. at 11-12, 17.) Defense counsel must clarify whether he represents defendant Hernandez and whether all nine of the defendants in this action are making an appearance via the motion to dismiss.
Second, Defendants refer to the Declarations of Duran and Jones, which are not on the Court's record, (Id. at 9:12-13; 11 ¶¶B, C, E), and conversely, Defendants do not refer to the Declarations of T. Campbell and J. Morgan, which are on the Court's record, (Docs. 52-2, 56). Defendants must clarify these discrepancies.
Third, Defendants refer to Exhibits 1 through 22 in the motion to dismiss. However, Exhibit 16 does not appear on the Court's record. Defendants must either submit Exhibit 16 to the Court or indicate their intention to proceed without Exhibit 16 on the record.
Fourth, D. Foston states that Plaintiff "submitted six appeals," but then only five appeals are listed. (Foston Decl., Doc. 54 at ¶3) (emphasis added). Defendants must clarify this inconsistency.
Finally, J. Morgan states that Plaintiff "submitted nine appeals," but then ten appeals are listed. (Morgan Decl., Doc. 56 at ¶5) (emphasis added). Defendants must clarify this inconsistency.
Defendants shall be granted ten calendar days from the date of service of this order in which to file a response to this order, addressing and clarifying the inconsistencies in the motion to dismiss described above.
Accordingly, IT IS HEREBY ORDERED that:
1. Within ten calendar days from the date of service of this order, Defendants shall file a response to this order, addressing and clarifying the inconsistencies in Defendant's motion to dismiss described in this order; and
2. Should Defendants fail to comply with this order, the motion to dismiss shall be denied on the eleventh calendar day.
IT IS SO ORDERED.