Tyler v. Alameida, et al

Filing 165

ORDER DENYING Plaintiff's 164 Motion for Entry of Default and Motion for Summary Judgment signed by Magistrate Judge Barbara A. McAuliffe on 1/5/2012. (Sant Agata, S)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

ELONZA JESSE TYLER,

10
11
12
13

CASE NO. 1:-04-cv–06638-LJO-BAM PC

Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR ENTRY OF DEFAULT AND MOTION
FOR SUMMARY JUDGMENT

v.
ALAMEIDA, et al.,

(ECF No. 164)
Defendants.
/

14
15

Plaintiff Elonza Jesse Tyler is a state prisoner proceeding pro se and in forma pauperis in

16

this civil rights action pursuant to 42 U.S.C. § 1983. Following remand by the Ninth Circuit of

17

Appeal, this action is proceeding against Defendant Smith for deliberate indifference in violation of

18

the Eighth Amendment. On December 29, 2011, an order issued directing the United States

19

Marshall to serve the second amended complaint on Defendant Smith. On December 30, 2011,

20

Plaintiff filed a motion for entry of default and motion for summary judgment.

21

In this case, the United States Marshal has just been directed to initiate service of process on

22

Plaintiff’s behalf. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(2). Until Plaintiff has legally effected

23

service of process of the second amended complaint, Defendant Martinez is under no obligation to

24

respond to the complaint. Fed. R. Civ. P. 4(e). Accordingly, Plaintiff’s motion for entry of default

25

is denied as premature. Fed. R. Civ. P. 55(a).

26

Federal Rule of Civil Procedure 56 contemplates that, prior to filing a motion for summary

27

judgment, the opposing party should have a sufficient opportunity to discover information essential

28

to its position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In other words, the
1

1

case must be sufficiently advanced in terms of pretrial discovery for the summary judgment target

2

to know what evidence likely can be mustered and be afforded a reasonable opportunity to present

3

such evidence. Portsmouth Square, Inc., v. Shareholders Protective Comm., 770 F.2d 866, 869 (9th

4

Cir.1985). Until such time as Defendant has entered an appearance and had the opportunity to

5

conduct discovery, Plaintiff’s motion is premature. Once Defendant files an answer, a discovery

6

order will be entered, and a deadline for the filing of dispositive motions will be set.

7
8
9
10

Accordingly, it is HEREBY ORDERED that Plaintiff’s motion entry of default and for
summary judgment is DENIED as premature.
IT IS SO ORDERED.
Dated:
10c20k

January 5, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2