(PC) Brookins v. Dwivedi

Opinion

BARRY L. BROOKINS, 1:18-cv-00645-DAD-GSA-PC

Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS TO COMPEL DEFENDANT vs. DWIVEDI TO FILE ANSWER (ECF Nos. 72, 77.)

Defendant.

Barry L. Brookins (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s Complaint filed on May 10, 2019, against sole defendant Dr. Rajendra Dwivedi (“Defendant”) for failing to provide adequate medical care in violation of the Eighth Amendment. (ECF No. 1.) On March 3, 2020, defendant Dwivedi filed a motion to dismiss which is pending. (ECF No. 46.) Discovery has not been opened. On February 4, 2021 and March 11, 2021, Plaintiff filed motions to compel defendant Dwivedi to file an answer to the complaint. (ECF Nos. 72, 77.) Plaintiff’s motions shall be denied because defendant Dwivedi’s answer is not due until after his pending motion to dismiss, filed on February 8, 2021, has been resolved. Under Rule 12(a)(4) of the Federal Rules of Civil Procedure, the filing of Defendant’s motion to dismiss extends the time for Defendant to file an answer until after the motion to dismiss has been resolved. Fed. R. Civ. P. 12(a)(4); See Hernandez v. Avis Budget Group, Inc., 1:17-cv-00211- DAD-EPG, 2018 WL 10323280 (E.D. Cal. November 2, 2018). Therefore, Plaintiff’s motions shall be denied. Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motions for Defendant to file an answer to the complaint, filed on February 4, 2021 and March 11, 2021, are denied.

Dated: March 12, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE