Atcherley v. Downing

Full title: WILBUR ATCHERLEY, Plaintiff, v. M. DOWNING, et al., Defendants.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Nov 5, 2013

2:11-cv-02922 DAD P (E.D. Cal. Nov. 5, 2013)

Opinion

WILBUR ATCHERLEY, Plaintiff, v. M. DOWNING, et al., Defendants. No. 2:11-cv-02922 DAD P United States District Court, E.D. California. November 5, 2013

          ORDER

          DAKE A. DRIZD, Magistrate Judge.

         Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is plaintiff's motion for clarification of this court's September 19, 2013 order. (ECF No. 38.) In addition, defendant Downing has filed an amended motion to strike defendant's earlier filed the request for an extension of time to file a responsive pleading in this action. (ECF No. 41.)

         The court will first address defendant Downing's request.¹ Defendant Downing is now represented by the Attorney General's Office and although the request for an extension of time to file a responsive pleading to plaintiff's second amended complaint was prematurely and inadvertently filed, defendant Downing now indicates that he intends to file his responsive pleading on or before November 25, 2013 pursuant to the court's October 16, 2013 order. Therefore, the court will grant defendant Downing's request to withdraw his motions to strike.

1 The Attorney General's Office made a special appearance and filed the motion and amended motion to strike, explaining that due to mistake and inadvertence, the request for an extension of time to file a responsive pleading was filed before defendant Downing was represented by the Attorney General's Office.

         In his request for clarification, plaintiff inquires of the court whether he is still required to provide a new USM-285 form for defendant Downing as ordered by the court in its September 19, 2013 order. In light of the circumstances described above, plaintiff is no longer required to provide the new USM-285 form for defendant Downing, the summons, and copies of the endorsed amended complaint.

         Accordingly, IT IS HEREBY ORDERED that:

         1. Defendant Downing's November 4, 2013 request to withdraw the motion and amended motion to strike the request for an extension of time (ECF No. 41), is granted;

         2. Defendant Downing's October 29, 2013 and November 1, 2013 motions to strike (ECF No. 39 & 40) are withdrawn;

         3. Plaintiff's October 28, 2013 motion for clarification (ECF No. 38) is granted; plaintiff is no longer required to submit a USM-285 form for defendant Downing, a summons and copies of the endorsed second amended complaint; and

         4. On or before November 25, 2013, defendant Downing shall file his responsive pleading to plaintiff's second amended complaint. If that response to the second amended complaint is a motion, plaintiff's opposition or statement of non-opposition shall be filed within thirty days from the date of service of the motion.