Harrell v. Oreck

Full title: PETER T. HARRELL, Plaintiff, v. ADAM ORECK, et al., Defendants

Court: United States District Court, E.D. California

Date published: Nov 2, 2007

No. CIV S-07-0847-GEB-CMK (E.D. Cal. Nov. 2, 2007)

Opinion

No. CIV S-07-0847-GEB-CMK.

November 2, 2007

ORDER

CRAIG KELLISON, Magistrate Judge

Plaintiff, who is proceeding pro se, brings this action for damages, invoking the court's federal question subject matter jurisdiction. Pending before the court are: (1) the motion to dismiss filed by defendants Oreck, Schack, Riggins, Bigler, Weston, and Siskiyou County Sheriff's Department (Doc. 11), filed on August 15, 2007; and (2) the motion to dismiss filed by defendant United States of America¹ (Doc. 26), filed on October 10, 2007. The hearing on the August 15, 2007, motion to dismiss was taken off calendar pursuant to Eastern District of California Local Rule 78-230(h) by order issued on August 24, 2007, and the motion was deemed submitted on the papers following completion of briefing. The motion to dismiss filed on October 10, 2007, was set for hearing before the undersigned on December 18, 2007. The court finds it appropriate to also vacate that hearing. Both motions will be submitted on the papers.

1 On October 10, 2007, the Chief of the Civil Division of the United States Attorney's Office for the Eastern District of California certified that federal employee Mark Montgomery, who is named as a defendant to this action, was acting within the scope of his employment with respect to the allegations made by plaintiff. Accordingly, pursuant to 28 U.S.C. § 2679(d)(1), the United States of America is substituted for Montgomery as a defendant to this action. The Clerk of the Court will be directed to terminate Montgomery as a defendant and to add the United States of America.

Accordingly, IT IS HEREBY ORDERED that:

1. The United States of America is substituted pursuant to 28 U.S.C. § 2679(d)(1) as a defendant in place of Mark Montgomery;

2. The Clerk of the Court is directed to terminate Mark Montgomery and add the United States of America;

3. The hearing set for December 18, 2007, at 10:00 a.m. before the undersigned in Redding, California, is hereby vacated; and

4. Defendants' motions to dismiss (Docs. 11 and 26) are submitted on the papers without oral argument.