(PC) Rodriguez v. Taiarol ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN R. RODRIGUEZ, No. 2:21-cv-1958 DB P 12 Plaintiff, 13 v. ORDER 14 RYAN TAIAROL, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims that he was improperly classified as a gang member in prison, and 19 after his release the wrongful gang classification was used by police to obtain search and arrest 20 warrants. Presently before the court is defendant City of Stockton’s motion to dismiss (ECF No. 21 24) and plaintiff’s motion for an extension of time to file an opposition to the motion to dismiss 22 (ECF No. 27). 23 The court screened and dismissed plaintiff’s original complaint. (ECF No. 16.) 24 Thereafter, plaintiff filed a first amended complaint. (ECF No. 22.) Before the court had the 25 opportunity to screen plaintiff’s amended complaint, defendant City of Stockton filed a motion to 26 dismiss. (ECF No. 24.) Therein, the City of Stockton argues that the complaint should be 27 dismissed because plaintiff’s claims are barred by the statute of limitations and Heck v. 28 1 | Humphrey, 512 U.S. 477, 486-87 (1994).! Plaintiff has requested a thirty-day extension of time 2 | to file an opposition to the motion to dismiss. (ECF No. 27.) 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 | governmental entity or an officer or employee of a governmental entity or an officer or employee 5 | of a governmental entity. 28 U.S.C. § 1915A(a). Thus, defendant’s motion to dismiss is 6 || premature and will be denied, without prejudice to its renewal if the court determines service is 7 | appropriate. See Gibbons v. Arpaio, No. CV 07-1456 PHX SMM (JCG), 2007 WL 2990151, at 8 | *2(D. AZ. Oct. 11, 2007) (dismissing motion to dismiss filed before screening order as 9 | premature); Rios v. Dragon, No. 2:20-cv-00146 ADA HBK (PC), 2022 WL 11324595, at *3 10 | (E.D. Cal. Oct. 19, 2022) (same). The undersigned will further deny plaintiff's motion for an 11 | extension of time as moot and screen the first amended complaint in due course. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Defendant City of Stockton’s motion to dismiss (ECF No. 24) is denied without 14 | prejudice; and 15 2. Plaintiff's motion for an extension of time (ECF No. 27) is denied as moot. 16 || Dated: March 8, 2023 17 18 19 BORAH BARNES UNITED STATES MAGISTRATE JUDGE 20 21 22 23 | pB:12 DB/DB Prisoner Inbox/Civil Rights/R/rodr1958.mtd+eot 24 25 26 ' Tn Heck, the Supreme Court held that a plaintiff cannot maintain a § 1983 action to recover damages for “harm caused by actions whose unlawfulness would render [his] conviction or 27 || sentence invalid” when his sentence and conviction have not previously been reversed, expunged, declared invalid, or called into question upon issuance of a writ of habeas corpus by a federal 28 | court.