Opinion
1:21-cv-00099-HBK
06-16-2021
CALVIN L. SHARP, JR., Plaintiff, v. KATHLEEN ALLISON, Secretary of the CDCR and STUART SHERMAN, Warden of CSATF, Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 15)
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
Calvin L. Sharp, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. (Doc. Nos. 1, 9). Pending is Plaintiff's motion for summary judgment filed on May 3, 2021. (Doc No. 15). This same day, the Court granted Plaintiff's construed motion to file an amended complaint. Thus, the operative pleading has not yet been screened pursuant to 28 U.S.C. § 1915A and Defendants have therefore not been served. (See docket). Until this matter is screened and the Court determines Plaintiff's claims are cognizable, Defendants are not required to file an answer or other responsive pleading.
Although Federal Rule of Civil Procedure 56 “allows a motion for summary judgment to be filed at the commencement of an action, in many cases the motion will be premature until the nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had.” Fed.R.Civ.P. 56, Advisory Committee's Notes (2010 Amendments, Note to Subdivision (b)). Courts routinely deny motions for summary judgment as premature when the opposing party has not been served. See, e.g., Carr v. Pruitt, No. 117CV01769DADSABPC, 2020 WL 3470349, at *1 (E.D. Cal. June 25, 2020); Williams v. Yuan Chen, No. S-10-1292 CKD P, 2011 WL 4354533, at * 3 (E.D. Cal. Sept. 16, 2011); Moore v. Hubbard, No. CIV-S-06-2187 FCD EFB P, 2009 WL 688897, at *1 (E.D. Cal. Mar. 13, 2009). The Court will accordingly deny without prejudice Plaintiffs summary judgment motion as premature. (Doc. No. 15). Should Plaintiffs case proceed past the screening stage, Plaintiff may re-file his motion at that time.
Accordingly, it is ORDERED:
Plaintiffs motion for summary judgment (Doc. No. 15) is DENIED as premature without prejudice.
IT IS SO ORDERED.