(PC) Gibson v. Castellanos ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 REGINALD GIBSON, 1:21-cv-00794-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 vs. JUDGE TO THIS CASE 14 CASTELLANOS, et al., AND 15 Defendants. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 16 MOTION FOR SUMMARY JUDGMENT BE DENIED AS PREMATURE 17 (ECF No. 9.) 18 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 19 20 21 22 23 24 I. BACKGROUND 25 Plaintiff, Reginald Gibson, is a state prisoner proceeding pro se and in forma pauperis 26 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 27 commencing this action on May 17, 2021. (ECF No. 1.) On March 7, 2022, Plaintiff filed a 28 motion for summary judgment. (ECF No. 9.) 1 II. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 2 Plaintiff seeks summary judgment on the merits of his claims against Defendants. 3 However, Plaintiff’s motion is premature pursuant to Rule 56(d) of the Federal Rules of Civil 4 Procedure. Gordon v. Marquez, No. 118CV01223DADSABPC, 2019 WL 1017323, at *1 (E.D. 5 Cal. Mar. 4, 2019). Although Rule 56 allows a party to file a motion for summary judgment “at 6 any time,” the rule also allows the court, as is just, to deny the motion or order a continuance for 7 the opposing party to pursue discovery. Id. (citing Fed. R. Civ. P. 56). 8 Here, Defendants are entitled to an opportunity to pursue discovery before responding to 9 a summary judgment motion. In this instance the Complaint has not been served, none of the 10 Defendants have filed an answer, and no discovery order has been issued. Accordingly, 11 Plaintiff’s motion for summary judgment should be denied as premature. However, nothing 12 prevents Plaintiff from filing a future motion for summary judgment that incorporates all relevant 13 materials obtained after the period set for the completion of all discovery as contemplated by 14 Rule 56. Id. (citing see, e.g., Moore v. Hubbard, No. CIV S-06-2187 FCD EFB P, 2009 WL 15 688897, at *1 (E.D. Cal. Mar. 13, 2009) (recommending that pre-discovery motion for summary 16 judgment be denied as premature)). 17 III. ORDER, RECOMMENDATION, AND CONCLUSION 18 Accordingly, IT IS HEREBY ORDERED that the Clerk randomly assign a United 19 States District Judge to this case; 20 AND 21 Based on the foregoing, it is HEREBY RECOMMENDED that: 22 1. Plaintiff’s motion for summary judgment, filed on May 17, 2021, be denied, 23 without prejudice, as premature; and 24 2. This case be referred back to the Magistrate Judge for further proceedings. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 27 (14) days from the date of service of these findings and recommendations, Plaintiff may file 28 written objections with the court. Such a document should be captioned “Objections to 1 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 2 objections within the specified time may waive the right to appeal the order of the District Court. 3 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 IT IS SO ORDERED. 5 6 Dated: April 19, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28