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McKinney v. Fresno Cnty. Sheriff's Office

United States District Court, Eastern District of California
Oct 14, 2022
1:22-cv-00475-ADA-EPG (E.D. Cal. Oct. 14, 2022)

Opinion

1:22-cv-00475-ADA-EPG

10-14-2022

MICHAEL GENE MCKINNEY, Plaintiff, v. FRESNO COUNTY SHERIFF'S OFFICE, et al., Defendants.


ORDER REGARDING JOINT STATUS REPORT, SETTING BRIEFING SCHEDULE, AND DENYING MOTION TO CONTINUE HEARING ON MOTION TO DISMISS AS MOOT

(ECF NOS. 9, 17)

Plaintiff Michael Gene McKinney, proceeding pro se, filed this lawsuit on April 21, 2022, against Defendants Fresno County Sheriff's Office, Fresno County Sheriff Margaret Mims, and Fresno County Sheriff's Captain Ryan Hushaw. (ECF No. 1). The complaint alleges that Defendants denied Plaintiff due process when he applied for a concealed carry license.

On June 2, 2022, Defendants filed a motion to dismiss Plaintiff's complaint for insufficient service of process and failure to state a claim for which relief can be granted. (ECF No. 5). On June 28, 2022, Plaintiff moved to continue the hearing on the motion to dismiss (although then presiding District Judge Dale A. Drozd had advised the parties that no hearing would be held) stating that Plaintiff intended to obtain counsel. (ECF Nos. 6, 9).

The motion to dismiss was referred to the undersigned on September 12, 2022. (ECF No. 13). On September 14, 2022, the Court directed the parties to file a joint status report addressing the following issues:

a. Whether the parties have been able to resolve any more issues in this case that would affect the Court's review of the pending motion to dismiss.
b. Whether the Court should order briefing on the applicability of New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022) to this case.
c. Whether Plaintiff still intends to obtain counsel, and if so, when Plaintiff anticipates doing so.
d. And, if Defendants intend to proceed on the pending motion to dismiss, the parties shall propose a briefing schedule for Plaintiff's opposition brief and Defendants' reply, if any.

On October 13, 2022, the parties filed a joint status report, stating as follows:

a. They have been unable to resolve any additional issues.
b. They want additional briefing ordered on the applicability of New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022), although neither party believes it will affect the outcome of this case.
c. Plaintiff does not intend to seek counsel.
d. Defendants shall file a supplemental brief addressing the impact of New York State Rifle & Pistol Ass'n v. Bruen on or before October 28, 2022. Plaintiff shall file an opposition, if any, on or before November 11, 2022. And Defendants do not anticipate filing a reply.
(ECF No. 17).

In light of the parties' joint status report, IT IS ORDERED as follows:

1. Defendants shall file a supplemental brief addressing the impact of New York State Rifle & Pistol Ass'n v. Bruen by no later than October 28, 2022.
2. Plaintiff shall file an opposition brief addressing the arguments in Defendants' motion to dismiss and the impact of New York State Rifle & Pistol Ass'n v. Bruen by no later than November 11, 2022. Plaintiff is advised that “[a] failure to file a timely opposition may also be construed by the Court as a nonopposition to the motion,” Local Rule 230(c), and that a failure to comply with the Local Rules or a court order may be grounds for sanctions, including the dismissal of this case, Local Rule 110.
3. While Defendants do not anticipate filing a reply, the Court sets a deadline of November 21, 2022, for them to do so should they believe one is warranted.
4. Plaintiff's motion to continue the hearing date (ECF No. 9) on the motion to dismiss is denied as moot.
5. If the Court concludes that a hearing is warranted, it will set one. Otherwise, the Court will issue findings and recommendations based on the arguments in the parties' briefs.

IT IS SO ORDERED.


Summaries of

McKinney v. Fresno Cnty. Sheriff's Office

United States District Court, Eastern District of California
Oct 14, 2022
1:22-cv-00475-ADA-EPG (E.D. Cal. Oct. 14, 2022)
Case details for

McKinney v. Fresno Cnty. Sheriff's Office

Case Details

Full title:MICHAEL GENE MCKINNEY, Plaintiff, v. FRESNO COUNTY SHERIFF'S OFFICE, et…

Court:United States District Court, Eastern District of California

Date published: Oct 14, 2022

Citations

1:22-cv-00475-ADA-EPG (E.D. Cal. Oct. 14, 2022)