(PC) Calvin L. Sharp Jr v. Kathleen Allison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CALVIN L. SHARP, JR., Case No. 1:21-cv-00099-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 13 v. (Doc. No. 15) 14 KATHLEEN ALLISON, Secretary of the CDCR and STUART SHERMAN, Warden 15 of CSATF, 16 Defendants. 17 18 Calvin L. Sharp, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. (Doc. Nos. 1, 9). Pending 20 is Plaintiff’s motion for summary judgment filed on May 3, 2021. (Doc No. 15). This same day, 21 the Court granted Plaintiff’s construed motion to file an amended complaint. Thus, the operative 22 pleading has not yet been screened pursuant to 28 U.S.C. § 1915A and Defendants have therefore 23 not been served. (See docket). Until this matter is screened and the Court determines Plaintiff’s 24 claims are cognizable, Defendants are not required to file an answer or other responsive pleading. 25 Although Federal Rule of Civil Procedure 56 “allows a motion for summary judgment to 26 be filed at the commencement of an action, in many cases the motion will be premature until the 27 nonmovant has had time to file a responsive pleading or other pretrial proceedings have been 28 had.” Fed. R. Civ. P. 56, Advisory Committee's Notes (2010 Amendments, Note to Subdivision 1 | (b)). Courts routinely deny motions for summary judgment as premature when the opposing 2 | party has not been served. See, e.g., Carr v. Pruitt, No. 117CV01769DADSABPC, 2020 WL 3 | 3470349, at *1 (E.D. Cal. June 25, 2020); Williams v. Yuan Chen, No. S-10-1292 CKD P, 2011 4 | WL 4354533, at * 3 (E.D. Cal. Sept. 16, 2011); Moore v. Hubbard, No. CIV-S-06-2187 FCD 5 | EFB P, 2009 WL 688897, at *1 (E.D. Cal. Mar. 13, 2009). The Court will accordingly deny 6 | without prejudice Plaintiff's summary judgment motion as premature. (Doc. No. 15). Should 7 | Plaintiff's case proceed past the screening stage, Plaintiff may re-file his motion at that time. 8 Accordingly, it is ORDERED: 9 Plaintiff's motion for summary judgment (Doc. No. 15) is DENIED as premature without 10 | prejudice. 11 IT IS SO ORDERED. | pated: _June 16,2021 Mihaw. Wh. foareh Zaskth 14 HELENA M. BARCH-KUCHTA 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28