Opinion
No. CIV S-05-2060 MCE JFM P.
June 4, 2007
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that defendants violated several of his constitutional rights by returning without notice a quarterly package that had been sent to plaintiff by an outside vendor. On September 13, 2006, defendants appeared in this action by filing a motion to dismiss this action on the ground that, in accordance with the provisions of 28 U.S.C. § 1915(g), plaintiff should not have been granted leave to proceed in forma pauperis. On September 21, 2006, plaintiff filed a motion for summary judgment. On September 27, 2006, defendants filed a motion for denial or continuance of plaintiff's motion for summary judgment. Defendants' motion was made on the ground that plaintiff's motion had been filed before the court's ruling on their motion to dismiss and before the commencement of discovery in this action.
By order filed November 17, 2006, this court granted defendants' motion and denied plaintiff's motion for summary judgment without prejudice to its renewal at a later stage of these proceedings. The November 17, 2006 order specifically provided that "[s]hould this action survive resolution of defendants' motion to dismiss, defendants will be entitled to conduct discovery before being required to oppose a motion for summary judgment." (Order, filed November 17, 2006, at 2.)
By order field March 9, 2007, the district court denied defendants' motion to dismiss. On March 28, 2007, defendants filed an answer to the complaint. On April 4, 2007, plaintiff filed a motion to renew his motion for summary judgment. On April 9, 2007, defendants filed an opposition to plaintiff's motion, contending that a request for summary judgment is still premature in that the parties had not yet commenced discovery and neither a discovery or nor a scheduling order had been issued in this action. Defendants' opposition is well-taken. Plaintiff's request to renew his motion for summary judgment is premature and will therefore be denied. Dispositive motions shall be filed in this action in accordance with the scheduling order issued concurrently with this order.
In accordance with the above, IT IS HEREBY ORDERED that plaintiff's April 4, 2007 motion is denied.