(PC) Brookins v. Dwivedi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY L. BROOKINS, 1:18-cv-00645-DAD-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS TO COMPEL DEFENDANT 13 vs. DWIVEDI TO FILE ANSWER (ECF Nos. 72, 77.) 14 RAJENDRA DWIVEDI, 15 Defendant. 16 17 18 19 Barry L. Brookins (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 21 Complaint filed on May 10, 2019, against sole defendant Dr. Rajendra Dwivedi (“Defendant”) 22 for failing to provide adequate medical care in violation of the Eighth Amendment. (ECF No. 23 1.) On March 3, 2020, defendant Dwivedi filed a motion to dismiss which is pending. (ECF No. 24 46.) Discovery has not been opened. 25 On February 4, 2021 and March 11, 2021, Plaintiff filed motions to compel defendant 26 Dwivedi to file an answer to the complaint. (ECF Nos. 72, 77.) 27 Plaintiff’s motions shall be denied because defendant Dwivedi’s answer is not due until 28 after his pending motion to dismiss, filed on February 8, 2021, has been resolved. Under Rule 1 12(a)(4) of the Federal Rules of Civil Procedure, the filing of Defendant’s motion to dismiss 2 extends the time for Defendant to file an answer until after the motion to dismiss has been 3 resolved. Fed. R. Civ. P. 12(a)(4); See Hernandez v. Avis Budget Group, Inc., 1:17-cv-00211- 4 DAD-EPG, 2018 WL 10323280 (E.D. Cal. November 2, 2018). Therefore, Plaintiff’s motions 5 shall be denied. 6 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motions for Defendant to file 7 an answer to the complaint, filed on February 4, 2021 and March 11, 2021, are denied. 8 9 IT IS SO ORDERED. 10 Dated: March 12, 2021 /s/ Gary S. Austin 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28