Scally v. Flores

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA TONY EUGENE SCALLY, Case No.: 22cv0182-DMS-MDD 12 Plaintiff, ORDER DENYING AS MOOT v. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CORRECTIONAL OFFICERS A.

FLORES and E. VEGA, [ECF No. 24] Defendants.

17 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).

22 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 F. App’x 577, 579 (9th Cir. 2007). Accordingly, the Court 1 IT IS SO ORDERED.

Dated: September 13, 2022 Vitel bs. [ Hon. Mitchell D. Dembin 4 United States Magistrate Judge