Opinion
CASE NO. 1:13-cv-00118-AWI-MJS (PC)
11-02-2015
JANICE SUGITA, Plaintiff, v. B. PARKER, et al., Defendants.
ORDER REGARDING DEFENDANT'S REQUEST FOR CLARIFICATION RE MOTION TO DISMISS (ECF No. 49.)
I. PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 28 U.S.C. § 1983. (ECF Nos. 4 & 10.) The action proceeds on a First Amendment retaliation claim against Defendant Longia. (ECF No. 10.)
The Court granted Defendants Salinas' and Longia's motions for summary judgment on Plaintiff's Eighth Amendment medical indifference claims. (ECF No. 36.) --------
Defendant filed a motion seeking to modify the Court's Second Scheduling Order (ECF No. 37.) to enable him to file a motion for judgment on the pleadings. (ECF No. 40.) The Court denied the motion and Defendant's motion for reconsideration of that denial. (ECF Nos. 41 & 47.)
Before the Court is Defendant's request for clarification regarding a motion to dismiss. (ECF No. 49.)
II. MOTION FOR CLARIFICATION
Defendant asks whether the Court's use, in its order denying his motion for reconsideration, of the words "[t]he defense of failure to state a claim remains available to Defendant" granted him leave to file a motion to dismiss (ECF No. 47.)
The extended deadline for filing dispositive motions in this case was January 30, 2015. (ECF No. 26.) The Court has not granted Defendant leave to file a motion to dismiss or any other dispositive motion beyond the deadline.
The defense of failure to state a claim can be raised at trial. Fed. R. Civ. P. 12(h)(2)(C).
To the extent that this further clarifies the issue for Defendant, his motion is GRANTED.
III. CONCLUSION AND ORDER
Based on the foregoing, it is HEREBY ORDERED that:
Defendant's motion for clarification (ECF No. 49) is GRANTED. IT IS SO ORDERED.
Dated: November 2, 2015
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE