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Thomas T. Alford v. Stephen S. Carlton

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


March 20, 2013

THOMAS T. ALFORD, PLAINTIFF,
v.
STEPHEN S. CARLTON, DEFENDANT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed an action pursuant to 42 U.S.C. § 1983.

On March 7, 2013, defendant filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Procedure, arguing that plaintiff has failed to allege that defendant deprived him of the opportunity to have post-conviction DNA testing done pursuant to Cal. Penal Code § 1405. (Dkt. No. 27-1.) However, defendant does not address Skinner v. Switzer, __ U.S. __, 131 S. Ct. 1289 (2011), as discussed in the court's screening order of June 6, 2012. (Dkt. No. 4.) To aid the court in its determination of the merits of defendant's motion, defendant will be directed to file a supplemental brief addressing Skinner's applicability to this action in the context of a Rule 12(b)(6) motion to dismiss.

Accordingly, IT IS HEREBY ORDERED THAT:

1. Within thirty days, defendant shall submit a supplemental memorandum of points and authorities addressing the applicability of Skinner to defendant's motion to dismiss this action under Rule 12(b)(6);

2. The hearing on the Motion to Dismiss set for May 8, 2013, at 10:00 a.m. is VACATED. Unless the parties are otherwise notified, this matter will not be set for hearing pursuant to Local Rule 230(l);

3. Plaintiff's opposition or statement of non-opposition to defendant's motion to dismiss shall be filed no later than twenty-one days after service of defendant's supplemental memorandum, and defendant's reply seven days later.

20130320

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