Opinion
NO: 2:11CV00133 JLH/HDY
11-18-2011
KEONDRA M. CHESTANG PLAINTIFF ADC #134005 v. VALERIE WESTBROOK et al. DEFENDANTS
ORDER
Plaintiff Keondra M. Chestang filed this complaint on August 4, 2011, and service was ordered. Defendants were served with the summons and complaint on October 12, 2011 (docket entries #14 & #15). On November 18, 2011, Plaintiff filed a motion for a default judgement or for an order to show cause, asserting that Defendants have not filed a timely response to his complaint (docket entry #19). However, Defendants filed a timely motion to dismiss on October 31, 2011 (docket entry #17). Accordingly, Defendants are not in default. See Fed. R. Civ. P. 12.
The undersigned notes that United States District Judge J. Leon Holmes has directed that the record be more fully developed, including as to the issue of whether the statute of limitations is tolled while a prisoner seeks to exhaust his administrative remedies (docket entry #10). Although Defendants have filed a motion to dismiss, and have asserted that Plaintiff's complaint is barred by the statute of limitations, they have not addressed the issue of whether the statute of limitations should be tolled while Plaintiff was attempting exhaustion. Accordingly, Defendants are directed to file a supplement to their motion to dismiss, which address the tolling issue, no later than 14 days after the entry of this order. Plaintiff must file his response to Defendants' motion, as supplemented, no later than 14 days after the supplement is filed.
IT IS THEREFORE ORDERED THAT:
1. Plaintiff's motion for a default judgment or order to show cause (docket entry #19) is DENIED.
2. Defendants are directed to file a supplement to their motion to dismiss, which addresses the tolling issue, no later than 14 days after the entry of this order.
3. Plaintiff is directed to file a response to Defendants' motion, as supplemented, no later than 14 days after the supplement is filed.
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UNITED STATES MAGISTRATE JUDGE