Polanco v. Department of Corrections et al
Filing
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ORDER Denying Plaintiff's Motion For Summary Judgment As Premature (ECF No. 32 ), signed by Magistrate Judge Barbara A. McAuliffe on 8/19/2012. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RIGOBERTO POLANCO,
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CASE NO. 1:11-cv-01421-BAM PC
Plaintiff,
ORDER DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AS PREMATURE
v.
DEPARTMENT OF CORRECTIONS, et al., (ECF No. 32)
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Defendants.
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Plaintiff Rigoberto Polanco (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on August 15,
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2011, and is currently pending screening. On August 10, 2012, Plaintiff filed a motion for summary
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judgment. (ECF No. 32.)
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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The Court will order the United States Marshall to serve Plaintiff’s complaint if, and only if, it
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determines that Plaintiff has stated a cognizable claim.
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The Court is yet to screen Plaintiff’s complaint to determine whether it states a claim upon
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which relief could be granted. As such, none of the Defendants have been served or have appeared
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in this case. With this procedural background in mind, the Court will address Plaintiff’s pending
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motion.
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Federal Rule of Civil Procedure 56 contemplates that, prior to filing a motion for summary
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judgment, the opposing party should have a sufficient opportunity to discover information essential
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to its position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In other words, the
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case must be sufficiently advanced in terms of pretrial discovery for the summary judgment target
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to know what evidence likely can be mustered and be afforded a reasonable opportunity to present
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such evidence. Portsmouth Square, Inc., v. Shareholders Protective Comm., 770 F.2d 866, 869 (9th
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Cir.1985). Until such time as Defendants have entered an appearance and had the opportunity to
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conduct discovery, Plaintiff’s motion is premature. Once Defendants have filed an answer, a
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discovery order will be entered, and a deadline for the filing of dispositive motions will be set.
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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for summary judgment is
DENIED as premature.
IT IS SO ORDERED.
Dated:
10c20k
August 19, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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