Opinion
2:22-cv-01096-KJM-JDP (HC)
09-19-2023
MILLARD WAYNE BAKER, Jr., Plaintiff, v. SOLORANO, et al., Defendants.
ORDER
JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE.
On April 5, 2023, I screened plaintiff's second amended complaint and found that it stated viable Eighth Amendment failure to protect and various, related state law claims. ECF No. 36. Defendants have now filed a motion that seeks clarification as to what state law claims survived screening. ECF No. 50. They also seek clarification as to whether they might be liable under state law for ordinary or gross negligence. Id. at 1-2. They note that the second amended complaint itself does not provide them with adequate guidance. Id. at 2.
All claims in the complaint, including all state law claims, have survived screening. If it were otherwise, recommendations to the district judge that claims be dismissed would have issued. The absence of such recommendations does not preclude defendants from filing a motion to dismiss, however, if they believe that claims in the complaint are foreclosed or non-cognizable. As for the question of the type of negligence and its applicability, that issue may be evaluated after the parties have had an opportunity to conduct discovery.
Finally, insofar as defendants' request for clarification as to when their responsive pleadings are due, they are directed to file such pleadings within twenty-one days of the date of this order.
Accordingly, it is ORDERED that defendants' motion for clarification, ECF No. 50, is GRANTED in part, insofar as it offers clarification as to which claims are operative, and DENIED in all other respects.
IT IS SO ORDERED.