Opinion
CASE NO. 1:05-cv-00790-OWW-SMS PC.
April 11, 2011
ORDER GRANTING DEFENDANTS LEAVE TO FILE A SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (ECF Nos. 36, 44) THIRTY-DAY DEADLINE
Plaintiff Carlos Hendon ("Carlos Hendon") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the second amended complaint, filed February 25, 2008, against Defendants Lopez, Granillo, and Julie Brimage, for violations of the Eighth Amendment. Defendants filed a motion for summary judgment on July 9, 2010. Plaintiff filed an opposition on August 2, 2010. On January 31, 2011, findings and recommendations were issued by the Magistrate Judge. On March 23, 2011, orders were issued reassigning the case to the undersigned and the findings and recommendations were vacated and the motion was referred back to the undersigned for further review of the second amended complaint and Defendants' motion for summary judgment.
Upon review of the complaint and the motion for summary judgment the Court will order further briefing from the parties. Neither Plaintiff's amended complaint nor the screening order issued on September 29, 2008, specified whether the violation alleged was excessive force or condition of confinement. While Defendant's couch the violation as excessive force, the Court finds that this action is more appropriately addressed as a condition of confinement claim. Therefore, Defendants shall be granted leave to file a supplemental motion for summary judgment addressing the standard for conditions of confinement.
Accordingly, it is HEREBY ORDERED that within thirty (30) days from the date of service of this order Defendants shall file a supplemental motion for summary judgment. If Defendants fail to file a motion in compliance with this order, the Court will recommend that the motion for summary judgment be denied.
IT IS SO ORDERED.
Dated: April 8, 2011