Opinion
ORDER
LAWRENCE K. KARLTON, District Judge.
This matter and all outstanding motions were stayed pending appointment of counsel for plaintiff. (Order, Apr. 2, 2013, ECF No. 45.) The court subsequently appointed attorney Alan J. Reinach to represent plaintiff. (Order, Apr. 25, 2013, ECF No. 46.) Now, good cause appearing, the motions stayed by the court's April 2, 2013 order are resolved below.
Before turning to these motions, the court will address one matter. Plaintiff's status conference statement, filed in anticipation of the status conference currently set for November 12, 2013, indicates that he intends to file an amended complaint. (ECF No. 60.) At this juncture, plaintiff may only amend the complaint with defendant's written consent or by leave of court. Fed.R.Civ.P. 15(a). Accordingly, if defendants will not stipulate to an amendment, plaintiff should bring on a motion to amend.
A review of the docket indicates that the U.S. Marshals Service was unable to serve defendant Warden Martel (ECF No. 16) If plaintiff intends to proceed against the Warden of the facility where he is currently incarcerated, the parties should also discuss whether counsel for defendants will represent this individual.
The court now turns to the pending motions.
On February 27, 2013, defendant filed a request for clarification "regarding the cognizable claim in this lawsuit" and requested leave to file a second motion to dismiss "if the Court now recognizes claims other than the one identified in its screening order." (Defendant's Request for Clarification and for Leave to File Motion to Dismiss 1, ECF No. 41.) On March 22, 2013, defendant filed a motion for an extension of time to respond to the complaint pending ruling on the motion for clarification. (ECF No. 43.) If plaintiff obtains leave to amend his complaint, whether by stipulation or court order, these pending motions may very well be mooted. Accordingly, they will be denied without prejudice.
On March 21, 2013, plaintiff filed, pro se, a motion for preliminary injunction. As plaintiff is now represented by counsel, his pro se motion will also be denied without prejudice.
Finally, in its April 2, 2013 Order, the court ordered that "[t]he referral of discovery to the Magistrate Judge remains in effect. The parties are DIRECTED to henceforth set all other law and motion practice for hearing before the undersigned." (ECF No. 45.) Following issuance of this order, defendant filed a consent to proceed before Magistrate Judge Craig M. Kellison. (ECF No. 57.) Plaintiff, while proceeding pro se, previously consented to the jurisdiction of a magistrate judge. (ECF No. 8.) Notwithstanding the consents filed herein, the matter will remain with the undersigned. See Local Rule 305(b).
As noted above, defendant Warden Martel was never served, and2 therefore never filed a consent to the magistrate judge's jurisdiction.
In light of the foregoing, the court hereby orders as follows:
[1] Defendant's request for clarification of the claims raised in the original complaint and for leave to file a second motion to dismiss that complaint (ECF No. 41) is DENIED without prejudice.
[2] Defendant's motion for an extension of time to respond to the original complaint (ECF No. 43) is DENIED without prejudice to defendant's right to respond to the operative complaint within the time set in the court's scheduling order.
[3] Plaintiff's March 21, 2013 motion for preliminary injunction (ECF No. 44) is DENIED without prejudice.
[4] Within twenty-one (21) days of docketing of this order, plaintiff is DIRECTED to file either (a) a joint stipulation with defendant permitting him to amend his complaint, along with the amended complaint, or (b) a motion to amend the complaint, along with a proposed amended complaint.
[5] The status conference currently set for November 12, 2013 at 3:00 p.m. is CONTINUED to February 3, 2014 at 1:30 p.m. The parties are DIRECTED to file updated status reports no later than January 21, 2014. If plaintiff intends to proceed against Warden Martel (or any other individual who currently serves as Warden of the facility in which plaintiff is incarcerated), he is DIRECTED to serve that individual with process and a copy of this order no later than January 7, 2014.
IT IS SO ORDERED.