Dulaney v. Fresno Police Department et al

Filing 12

ORDER DENYING Motion for Summary Judgment as Premature (Doc. 11 ), Signed by Magistrate Judge Barbara A. McAuliffe on 1/16/2015. (Arellano, S.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIO DULANEY,

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Plaintiff,

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v.
JERRY DYER, FRESNO POLICE
DEPARTMENT, FRESNO POLICE
OFFICER RICHARD BADILLA, FRESNO
POLICE OFFICER MATHEW SILVER
Defendant.

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) Case No. 1:14-cv-1051-BAM
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) ORDER DENYING MOTION FOR
) SUMMARY JUDGMENT AS PREMATURE
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Plaintiff Mario Dulaney (“Plaintiff”) appears to be a pretrial detainee1 proceeding pro se

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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this

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action on July 3, 2014 and the Court screened the complaint and granted Plaintiff leave to

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amend. On October 24, 2014, Plaintiff filed a First Amended Complaint which is currently

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pending screening. Plaintiff names Police Chief Jerry Dyer, Fresno Police Officer Richard

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Badilla, and Fresno Police Officer Mathew Silver as defendants. Plaintiff has consented to

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magistrate judge jurisdiction. On January 15, 2015, Plaintiff filed a Motion for Summary

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Judgment.

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The Court must initially screen the case to determine whether it states a cognizable claim

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for relief. After screening, if the Court finds that there are cognizable claims for relief, the Court

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will Order Plaintiff to complete and submit forms so that the U.S. Marshal can serve Defendants

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The allegations are unclear if Plaintiff is a pretrial detainee or a sentenced prisoner. For purposes of this order,
the Court will assume Plaintiff is a pretrial detainee.
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with Plaintiff's Complaint. Only then will the Defendants make an appearance and file an

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Answer.

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Here, however, the First Amended Complaint has not yet been screened there has been no

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service of the Complaint on the Defendants, and Defendants have not yet appeared in the action.

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Thus, any Motion for Summary Judgment is premature.

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The Court recognizes that Plaintiff wishes this action to proceed speedily. However, the
Court has hundreds of similar cases pending which also require the Court's time and attention.
The Court proceeds with the cases in the order that they are filed. Plaintiff can rest assured that
the Court has not forgotten about his case nor is it lost. The Court will proceed with the
screening the First Amended Complaint in due course. Plaintiff is advised to keep the Court
apprised of his current address so as to receive all orders or pleadings filed in the case.
Accordingly, the Motion for Summary Judgment is DENIED without prejudice as
premature.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

January 16, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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