Opinion
Case No. 1:14-cv-00872-JLT (PC)
07-09-2015
ISRRAEL ESPINOZA, Plaintiff, v. DIAZ, Defendant.
ORDER DIRECTING DEFENDANT TO ADVISE WHETHER HE DESIRES HIS MOTION TO DISMISS BE CONVERTED TO A MOTION FOR SUMMARY JUDGMENT OR WITHDRAWING HIS MOTION TO DISMISS
(Doc. 11)
10-DAY DEADLINE
Plaintiff is proceeding against Defendant Diaz for a claim of excessive force in violation of the Eighth Amendment. On October 7, 2014, Defendant filed a motion to dismiss which has been fully briefed and submitted. In support of Defendant's motion, he attaches a document related to his argument that there exists a Heck bar. In order for the Court to consider the document, it must convert the motion to one brought under Rule 56 and allow Plaintiff sufficient opportunity to present evidence to contradict that presented by Defendant. Alternatively, Defendant may withdraw the motion as to the Heck claim and re-file it under Rule 56.
Accordingly, within ten days, the Court ORDERS Defendant to file a statement indicating he desires his motion to dismiss to be converted to a Rule 56 motion or file a notice withdrawing his motion to dismiss in full or as it relates only to his Heck claim. IT IS SO ORDERED.
A briefing schedule for Plaintiff's opposition and a reply thereto will be set after Defendant's response to this order is received. --------
Dated: July 9 , 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE