Espinoza v. Texas Tech Administration

Full title: RUDY ESPINOZA, Plaintiff, v. TEXAS TECH ADMINISTRATION, et al., Defendants.

Court: United States District Court, Northern District of Texas

Date published: May 31, 2021

2:19-CV-0039-Z-BR (N.D. Tex. May. 31, 2021)

Opinion

2:19-CV-0039-Z-BR

05-31-2021

RUDY ESPINOZA, Plaintiff, v. TEXAS TECH ADMINISTRATION, et al., Defendants.

LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE

FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO DENY MOTION FOR PRE-SCREENING SUMMARY JUDGMENT

LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE

Before the Court is plaintiff's Motion for Summary Judgment against all Defendants. (ECF 13). Having considered the motion, the Court recommends it be DENIED.

Default judgment and summary judgment are not proper at this time because “[n]o defendant is in default for failing to respond to [plaintiff's] complaint, as the Court is still screening this in forma pauperis action under 28 U.S.C. [§§] 1915(e)(2)(B) [and 1915A]. As such, the complaint has not been ordered served on any defendant.” Bingham v. LaSalle Sw., No. 3:20-CV-809-N-BN, 2020 WL 4741134, at *1 (N.D. Tex. July 13, 2020), rec. adopted, No. 3:20-CV-809-N-BN, 2020 WL 4732089 (N.D. Tex. Aug. 14, 2020) (citing Richardson v. Cnty. of Dallas, No. 3:16-cv-3316-K-BN, 2017 WL 2869925, at *1 (N.D. Tex. June 5, 2017), rec. accepted, 2017 WL 2861791 (N.D. Tex. July 5, 2017)). Plaintiff has moved for summary judgment before any defendant has received notice of this lawsuit. But as service has not been authorized as to any defendant, and as no defendant has been directed to appear, there is no basis for Plaintiff to be entitled to summary judgment. Therefore, the motion for summary judgment should be denied. See Brantley v. CMC Med., No. 1:15-CV-075-BL, 2016 WL 11682077, at *1 (N.D. Tex. June 9, 2016), rec. adopted, No. 1:15-CV-075-C, 2016 WL 11682076 (N.D. Tex. July 14, 2016).

Here, the Court has contemporaneously entered an order for a Martinez Report from the Defendants. Additionally, subsequent to plaintiff s motion for summary judgment, he has filed an Amended Complaint (ECF 15-1). As such, his motion for summary judgment on his original complaint is moot and should be denied as such for that reason as well. Plaintiff is not prohibited from moving for summary judgment if service is ordered on the defendants after screening.

IT IS SO RECOMMENDED.