Fisher v. Adair
Filing
11
ORDER Denying Plaintiff's Motion for Summary Judgment as Premature 9 ; ORDER Denying Plaintiff's Motion for Leave to Amend as Unnecessary 10 , signed by Magistrate Judge Sandra M. Snyder on 6/2/11. (Verduzco, M)
<![CDATA[
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
HILTON FISHER,
10
CASE NO. 1:11-cv-00609-AWI-SMS PC
Plaintiff,
11
ORDER DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AS PREMATURE
v.
(ECF No. 9)
12
S. ADAIR,
13
ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO AMEND AS
UNNECESSARY
Defendant.
14
(ECF No. 10)
15
/
16
17
I.
Procedural History
18
Plaintiff Hilton Fisher (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
19
in this civil rights action pursuant to 42 U.S.C. § 1983. The complaint in this action was filed on
20
April 15, 2011. (ECF No. 1.) Plaintiff filed a motion for a speedy trial on May 10, 2011, and a
21
motion for leave to amend on May 31, 2011. (ECF Nos.. 9, 10.)
22
II.
Motion for Summary Judgment
23
Plaintiff’s motion, entitled motion for a speedy trial, requests the Court to grant summary
24
judgment pursuant to Federal Rule of Civil Procedure 56. The Court is required to screen complaints
25
brought by prisoners seeking relief against a governmental entity or officer or employee of a
26
governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof
27
if the prisoner has raised claims that are legally “frivolous or malicious,” that “fails to state a claim
28
on which relief may be granted,” or that “seeks monetary relief against a defendant who is immune
1
1
from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court will order the United States Marshall to
2
serve Plaintiff’s complaint if, and only if, it determines that Plaintiff has stated a cognizable claim.
3
The Court is yet to screen Plaintiff’s complaint to determine whether it states a claim upon
4
which relief could be granted. As such, none of the Defendants have been served or have appeared
5
in this case. With this procedural background in mind, the Court will address Plaintiff’s pending
6
motion.
7
Federal Rule of Civil Procedure 56 contemplates that, prior to filing a motion for summary
8
judgment, the opposing party should have a sufficient opportunity to discover information essential
9
to its position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In other words, the
10
case must be sufficiently advanced in terms of pretrial discovery for the summary judgment target
11
to know what evidence likely can be mustered and be afforded a reasonable opportunity to present
12
such evidence. Portsmouth Square, Inc., v. Shareholders Protective Comm., 770 F.2d 866, 869 (9th
13
Cir.1985). Until such time as Defendants have entered an appearance and had the opportunity to
14
conduct discovery, Plaintiff’s motion is premature. Once Defendants have filed an answer, a
15
discovery order will be entered, and a deadline for the filing of dispositive motions will be set.
16
Accordingly, Plaintiff’s motion for summary judgment shall be denied.
17
III.
Motion for Leave to Amend
18
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s
19
pleading once as a matter of course at any time before a responsive pleading is served. Otherwise,
20
a party may amend only by leave of the court or by written consent of the adverse party, and leave
21
shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, a responsive
22
pleading has not been served and Plaintiff has not previously amended his complaint. Therefore,
23
Plaintiff may file an amended complaint without leave of the Court.
24
Plaintiff is advised that his amended complaint should be brief, Fed. R. Civ. P. 8(a), but must
25
state what each named defendant did that led to the deprivation of Plaintiff’s constitutional or other
26
federal rights, Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948-49 (2009). “The inquiry into causation must
27
be individualized and focus on the duties and responsibilities of each individual defendant whose
28
acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d
2
1
628, 633 (9th Cir. 1988). Although accepted as true, the “[f]actual allegations must be [sufficient]
2
to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S.
3
554, 555 (2007) (citations omitted). Finally, an amended complaint supercedes the original
4
complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d
5
565, 567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded
6
pleading,” Local Rule 220.
7
In addition it appears that Plaintiff is requesting to amend his complaint to add events that
8
occurred at the time of or after he filed his complaint in this action. Plaintiff is advised that pursuant
9
to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect to prison
10
conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail,
11
prison, or other correctional facility until such administrative remedies as are available are
12
exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is required regardless of
13
the relief sought by the prisoner. Booth v. Churner, 532 U.S. 731, 741 (2001). Proper exhaustion
14
is required so “a prisoner must complete the administrative review process in accordance with the
15
applicable rules, including deadlines, as a precondition to bringing suit in federal court.” Ngo v.
16
Woodford, 539 F.3d 1108, 1109 (9th Cir. 2008) (quoting Woodford v. Ngo, 126 S. Ct. 2378, 2384
17
(2006)).
18
Accordingly, it is HEREBY ORDERED that:
19
1.
20
Plaintiff’s motion for summary judgment, filed May 10, 2011, is DENIED as
premature; and
21
2.
22
Plaintiff’s motion for leave to amend, filed May 31, 2011, is DENIED as
unnecessary.
23
24
IT IS SO ORDERED.
25
Dated:
icido3
June 2, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
26
27
28
3
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
