(PC) Turner v. Ullery et al, No. 2:2022cv00002 - Document 24 (E.D. Cal. 2022)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/6/22 ORDERING that the Clerk of the Court is directed to return to plaintiff the hard copy of his motion for summary judgment 22 and to assign a district judge to this case. RECOMMENDING that plaintiff's motion for summary judgment 22 be denied without prejudice. F&R referred to District Judge Troy L. Nunley. Objections to F&R due within fourteen days. (Kaminski, H)
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(PC) Turner v. Ullery et al Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DEWAYNE LEE TURNER, 12 Plaintiff, 13 14 No. 2:22-cv-0002 KJN P v. ORDER AND FINDINGS AND RECOMMENDATIONS MICHAEL ULLERY, et al., 15 Defendants. 16 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights 17 18 complaint under 42 U.S.C. § 1983. On May 19, 2022, plaintiff filed a motion for summary 19 judgment, which he signed on February 14, 2022. (ECF No. 22 at 8.) Plaintiff seeks summary judgment on the merits of his claims against defendants. 20 21 However, plaintiff's motion is premature for two reasons. First, plaintiff’s motion was filed 22 before defendants appeared in this action. Defendants filed their answer on May 31, 2022. (ECF 23 No. 22.) Second, under Rule 56(d) of the Federal Rules of Civil Procedure, parties are entitled to 24 conduct discovery. Gordon v. Marquez, 2019 WL 1017323, at *1 (E.D. Cal. Mar. 4, 2019). 25 Although Rule 56 allows a party to file a motion for summary judgment “at any time,” the rule 26 also allows the court, as is just, to deny the motion or order a continuance for the opposing party 27 to pursue discovery. Id. (citing Fed. R. Civ. P. 56). 28 //// 1 Dockets.Justia.com 1 Here, defendants are entitled to an opportunity to pursue discovery before responding to a 2 summary judgment motion. In this instance, plaintiff prepared and signed his motion before 3 service of process was accomplished and before defendants filed an answer. Due to an apparent 4 mail delay, plaintiff’s motion was filed with the court on May 19, 2022, which was still prior to 5 defendants’ answer on May 31, 2022. In addition, the court has not yet issued its discovery and 6 scheduling order. Accordingly, plaintiff's motion for summary judgment should be denied as 7 premature. Of course, nothing prevents plaintiff from filing a future motion for summary 8 judgment that incorporates all relevant materials obtained after the period set for the completion 9 of all discovery as contemplated by Rule 56. 1 Id. (citing see, e.g., Moore v. Hubbard, 2009 WL 10 688897, at *1 (E.D. Cal. Mar. 13, 2009) (recommending that pre-discovery motion for summary 11 judgment be denied as premature)). In other words, all parties should refrain from filing a motion 12 for summary judgment until after discovery has closed. Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to return 13 14 to plaintiff the hard copy of his motion for summary judgment (ECF No. 22); and to assign a 15 district judge to this case. Further, IT IS RECOMMENDED that plaintiff’s motion for summary judgment (ECF No. 16 17 22) be denied without prejudice. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 23 objections shall be filed and served within fourteen days after service of the objections. The 24 //// 25 //// 26 //// 27 28 1 Because the court retains the scanned copy of plaintiff’s 176-page motion and exhibits, the Clerk of the Court is directed to return the hard copy of plaintiff’s motion and exhibits to plaintiff. 2 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: June 6, 2022 4 5 6 /turn0002.msj.prem 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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