Dulaney v. Dyer

Full title: MARIO DULANEY, Plaintiff, v. JERRY DYER, FRESNO POLICE DEPARTMENT, FRESNO…

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Jan 16, 2015

1:14-cv-1051-BAM (E.D. Cal. Jan. 16, 2015)

Opinion

MARIO DULANEY, Plaintiff, v. JERRY DYER, FRESNO POLICE DEPARTMENT, FRESNO POLICE OFFICER RICHARD BADILLA, FRESNO POLICE OFFICER MATHEW SILVER Defendant. No. 1:14-cv-1051-BAM United States District Court, Eastern District of California January 16, 2015

          ORDER DENYING MOTION FOR SUMMARY JUDGMENT AS PREMATURE

         Plaintiff Mario Dulaney ("Plaintiff) appears to be a pretrial detainee¹ proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on July 3, 2014 and the Court screened the complaint and granted Plaintiff leave to amend. On October 24, 2014, Plaintiff filed a First Amended Complaint which is currently pending screening. Plaintiff names Police Chief Jerry Dyer, Fresno Police Officer Richard Badilla, and Fresno Police Officer Mathew Silver as defendants. Plaintiff has consented to magistrate judge jurisdiction. On January 15, 2015, Plaintiff filed a Motion for Summary Judgment.

1 The allegations are unclear if Plaintiff is a pretrial detainee or a sentenced prisoner. For purposes of this order, the Court will assume Plaintiff is a pretrial detainee.

         The Court must initially screen the case to determine whether it states a cognizable claim for relief. After screening, if the Court finds that there are cognizable claims for relief, the Court will Order Plaintiff to complete and submit forms so that the U.S. Marshal can serve Defendants with Plaintiffs Complaint. Only then will the Defendants make an appearance and file an Answer.

         Here, however, the First Amended Complaint has not yet been screened there has been no service of the Complaint on the Defendants, and Defendants have not yet appeared in the action. Thus, any Motion for Summary Judgment is premature.

         The Court recognizes that Plaintiff wishes this action to proceed speedily. However, the Court has hundreds of similar cases pending which also require the Court's time and attention. The Court proceeds with the cases in the order that they are filed. Plaintiff can rest assured that the Court has not forgotten about his case nor is it lost. The Court will proceed with the screening the First Amended Complaint in due course. Plaintiff is advised to keep the Court apprised of his current address so as to receive all orders or pleadings filed in the case.

         Accordingly, the Motion for Summary Judgment is DENIED without prejudice as premature.

         IT IS SO ORDERED.