Opinion
Case No. 1:14-cv-00872-JLT (PC)
07-20-2015
ISRRAEL ESPINOZA, Plaintiff, v. DIAZ, Defendant.
ORDER CONVERTING DEFENDANT'S MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT UNDER RULE 56 and DIRECTING PLAINTIFF TO EITHER FILE AN OPPOSITION THAT COMPLIES WITH RULE 56 OR TO ADVISE IF HE DESIRES TO REST ON HIS CURRENT OPPOSITION
(Doc. 11, 17)
30-DAY DEADLINE
Plaintiff is proceeding against Defendant Diaz for excessive force in violation of the Eighth Amendment. On October 7, 2014, Defendant filed a motion to dismiss which has been fully briefed and submitted.
In support of Defendant's motion, he attaches a document related to his argument that this action is barred under Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). The document and its application to Plaintiff's claims may only be considered under Federal Rule of Civil Procedure 56. Defendant has advised that he does not desire to withdraw and refile his motion on this issue, but prefers it be converted to a motion for summary judgment under Rule 56.
Accordingly, it is HEREBY ORDERED, that:
(1) the portion of Defendant's motion to dismiss, filed on October 7, 2014 (Doc. 11),
which addresses whether Plaintiff's claims are Heck barred is CONVERTED to a motion for summary judgment under Rule 56;
(2) within 30 days of the date of service of this order, Plaintiff must file either:
IT IS SO ORDERED.(a) a new opposition to Defendant's motion as provided for in Federal Rule of Civil Procedure 56 addressing whether his claims are Heck barred, or
(b) a statement indicating he desires to rest on his current opposition to the motion.
The requirements for opposing a motion for summary judgment under Rule 56 will be provided to Plaintiff in a concurrently issued order. --------
Dated: July 20 , 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE