Opinion
No. CIV S-05-2060 MCE JFM P.
September 12, 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. By order filed June 5, 2007, plaintiff's April 4, 2007 motion to renew his motion for summary judgment was denied. The June 5, 2007 order specifically provided that dispositive motions were to be filed in this action in accordance with the scheduling order issued concurrently with that order. The scheduling order set a deadline of October 5, 2007 for the filing of dispositive motions.
On June 20, 2007, plaintiff filed a third motion for summary judgment. On June 26, 2007, defendants again filed a motion to deny or continue plaintiff's motion, on the ground that discovery had recently been initiated but was ongoing. In his reply, plaintiff opposes denial of the motion, but not continuance thereof.
For the reasons set forth in previous orders of this court, plaintiff's June 20, 2007, motion for summary judgment is premature. Defendants' motion will therefore be granted, and plaintiff's motion for summary judgment will therefore be denied without prejudice to its renewal, as appropriate, not sooner than September 21, 2007 and not later than October 5, 2007. Plaintiff may, as appropriate, renew the motion by filing a notice of motion that incorporates by reference all the documents filed in connection with his June 20, 2007 motion without refiling all said documents. In the alternative, plaintiff may file a new motion for summary judgment, briefing and evidence in support thereof.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Defendants' June 26, 2007 motion to deny or continue plaintiff's June 20, 2007 motion for summary judgment is granted; and
2. Plaintiff's June 20, 2007 motion for summary judgment is denied without prejudice to its renewal, as appropriate, not sooner than September 21, 2007 and not later than October 5, 2007.