Opinion
22cv0182-DMS-MDD
09-13-2022
TONY EUGENE SCALLY, Plaintiff, v. CORRECTIONAL OFFICERS A. FLORES and E. VEGA, Defendants.
ORDER DENYING AS MOOT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 24]
Hon. Mitchell D. Dembin United States Magistrate Judge
Plaintiff is a prisoner proceeding pro se and in forma pauperis with a First Amended Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 7). Before the Court is Plaintiff's Motion for Summary Judgment arguing that Defendants failed to timely respond to Plaintiff's complaint by September 6, 2022. (ECF No. 24).
On September 2, 2022, Defendants responded to Plaintiff's complaint by filing a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (See ECF No. 20). Defendants are entitled to file a motion to dismiss pursuant to Rule 12(b) in lieu of an answer. See, e.g., Gabor v. Seligmann, 222 Fed.Appx. 577, 579 (9th Cir. 2007). Accordingly, the Court DENIES AS MOOT Plaintiff's Motion for Summary Judgment.
IT IS SO ORDERED.