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Gifford v. Puckett

United States District Court, E.D. California

April 6, 2017

ROGER GIFFORD, Plaintiff,
v.
ROBERT PUCKETT, SR., et al., Defendants.

          ORDER

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff seeks an extension of time of 60 days to file his opposition to Motions to Dismiss pending on this Court's May 18, 2017, hearing calendar. He also seeks permission to take pre-Answer discovery.

         PROCEDURAL HISTORY

         Plaintiff filed his 84 page complaint together with 40 pages of exhibits alleging civil rights violations by several individuals and institutional defendants on May 5, 201, ECF No. 1, together with a Motion to Proceed In Forma Pauperis. ECF No. 2. He was granted IFP status by Magistrate Judge Allison Claire on May 26, 2016. ECF No. 3. In her order granting that status, the Magistrate Judge also dismissed the complaint and gave the plaintiff 30 days to amend in accordance with instructions given him in the Order. Id.

         On June 15, 2016, plaintiff filed both objections to the court's order, ECF No. 4 and a First Amended Complaint. ECF No. 5. On June 20, 2016, Magistrate Judge Claire issued an Order dismissing this Complaint with 30 days leave to amend noting that the Amendment was “nearly identical” to the original Compliant, again providing guidance on how to plead sufficiently and limited any amendment filed to 25 pages in length. ECF No. 6.

         On July 5, 2016 plaintiff filed Objections to the Order in which he declined to amend his complaint which he argued met the requirements of Federal Rule of Civil Procedure 8, upon which the Magistrate based her order in principal part, ECF No. 7, and on August 24, 2016 the Magistrate granted plaintiff an additional 30 days to file his amendment, and imposing the same 25 page limit on an further pleading he chose to file. ECF No. 8.

         On September 20, 2016 plaintiff sought to withdraw his request for IFP status and paid the court's filing fee, ECF No. 1. On December 5, 2016, the Magistrate Judge granted permission to withdraw from IFP status and gave the plaintiff an additional 30 days to file a Second Amended Complaint. ECF No. 11. On December 29, 2016 plaintiff sought a 30 day extension of time to file his second amended complaint, ECF No. 12, and that request was granted by an Order issued January 4, 2017. ECF No. 13.

         On February 1, 2017 plaintiff submitted his Second Amended Complaint which ran to 148 pages. ECF No. 14, and summons were issued to the named defendants. ECF No. 15. On March 21, 2017, Motions to Dismiss were served by counsel for various groups of defendants. ECF Nos. 28, 32, 34, 35 and 36.[1]

         On March 29, 2017 District Judge Kimberly Mueller issued an order that transferred this case from Judge Nunley's docket to hers and from Magistrate Judge Claire's docket to the undersigned. ECF No. 45.[2] On the same day, a new Motion to Dismiss the Second Amended Complaint based upon which summonses had been issued which included a 22 page Memorandum of Points and Authorities and 179 pages for which defendants sought Judicial Notice. (ECF No. 46) It is this Motion that is the subject of plaintiff's request for an additional 60 days to respond, and for early discovery.

         DISCUSSION

         MOTION FOR EXTENSION OF TIME

         This motion will be denied as the District Court's Order of March 29, 2017 at ECF No. 45 effectively dismissed the presently pending Amended Complaint and directed a new filing not to exceed 25 pages. Therefore there is no pending complaint upon which this court may act.

         MOTION FOR EARLY DISCOVERY

         For the same reason as the extension of time request is denied, this Motion will also be denied, i.e., there is no pending Complaint as to which any discovery is appropriate at this time. PENDING ...


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