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Gilmore v. Lockard

United States District Court, E.D. California

December 6, 2019

C. DWAYNE GILMORE, Plaintiff,
v.
C. LOCKARD, et al., Defendants.

         ORDER VACATING DECEMBER 3, 2015 ORDER, GRANTING PLAINTIFF'S MOTION TO WITHDRAW CONSENT TO MAGISTRATE JUDGE JURISDICTION, AND REASSIGNING ACTION TO DISTRICT JUDGE LAWRENCE J. O'NEILL AND MAGISTRATE STANLEY A. BOONE (ECF Nos. 151, 153) ORDER DIRECTING CLERK OF COURT TO REASSIGN CASE TO DISTRICT JUDGE LAWRENCE J. O'NEILL AND MAGISTRATE STANLEY A. BOONE ORDER DIRECTING DEFENDANTS TO FILE AND SERVE A SUGGESTION OF DEFENDANT TORRES' DEATH ON PLAINTIFF AND DEFENDANT TORRES' SUCCESSOR OR PERSONAL REPRESENTATIVE THIRTY (30) DAY DEADLINE

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE

         Plaintiff C. Dwayne Gilmore is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants Lockard, Lopez, Hightower, and Torres for excessive force, and against Defendant Torres for deliberate indifference to serious medical needs, in violation of the Eighth Amendment.

         I. Procedural Background

         On June 7, 2012, Plaintiff initiated this action. (ECF No. 1.)

         On June 29, 2012, Plaintiff consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (ECF No. 8.)

         On November 18, 2013, the Court ordered that this action proceed only against Defendants Lockard, Lopez, Hightower, and Torres for excessive force, and against Defendant Torres for denial of adequate medical care and directed that service of summons and Plaintiff's first amended complaint was appropriate for Defendants Lockard, Lopez, Hightower, and Torres. (ECF No. 17.)

         On February 24, 2014, the Deputy Attorney General representing Defendants Lopez and Hightower filed a notice stating that Defendant Torres had died. (ECF No. 23.) The notice stated that it was being made under Federal Rule of Civil Procedure 25(a). (Id.)

         On March 5, 2014, March 17, 2014, April 4, 2014, May 16, 2014, and July 17, 2014, Plaintiff filed five motions to substitute Defendant Torres. (ECF Nos. 25, 28, 31, 43, 61.)

         On March 6, 2014, March 21, 2014, April 17, 2014, May 20, 2014, and July 25, 2014, the Court denied each of Plaintiff's motions to substitute Defendant Torres without prejudice. (ECF Nos. 26, 29, 32, 48, 63.)

         On April 4, 2014, Defendants Hightower and Lopez filed an answer to Plaintiff's first amended complaint. (ECF No. 30.)

         On May 15, 2014, Defendant Lockard filed an answer to Plaintiff's first amended complaint. (ECF No. 40.)

         On May 19, 2014, Defendants Hightower, Lockard, and Lopez declined magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). (ECF No. 45.) On May 20, 2014, this case was assigned to U.S. District Judge Lawrence J. O'Neill and U.S. Magistrate Judge Gary S. Austin. (ECF No. 46.)

         On November 20, 2014, Plaintiff filed his sixth motion to substitute ...


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