Baker v. German, et al.
Filing
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FINDINGS and RECOMMENDATION Recommending that Plaintiff's 10 MOTION for SUMMARY JUDGMENT be Denied, Without Prejudice, as Premature, signed by Magistrate Judge Stanley A. Boone on 2/8/17. Referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DOMINIQUE D. BAKER,
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Plaintiff,
v.
HUMBERTO GERMAN, et al.,
Defendants.
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Case No.: 1:16-cv-01873-AWI-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT BE
DENIED, WITHOUT PREJUDICE, AS
PREMATURE
[ECF No. 10]
Plaintiff Dominique Baker is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On January 9, 2017, the Court struck the original complaint filed on December 15, 2016, for
lack of signature. (ECF No. 1.)
On February 6, 2017, Plaintiff filed a motion for summary judgment, along with a first
amended complaint.
As stated in the Court’s December 16, 2016, First Informational Order, the Court is required to
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screen complaints brought by prisoners seeking relief against a governmental entity or officer or
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employee of a governmental entity. 28 U.S.C. § 1915A(a). The screening requirement is statutory
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mandated in this instance and the Court cannot waive such requirement. Thus, Defendants are not
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required to file an answer or other pleading in response to Plaintiff’s complaint until after the Court
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has completed its mandatory screening process to determine whether Plaintiff states any cognizable
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claims. Furthermore, as stated in the Court’s December 16, 2016, order, the Court has an extremely
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large number of pro se plaintiff civil rights cases pending before it and the Court will screen the
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complaint in due course.
Plaintiff’s motion for summary judgment is premature and must be denied without prejudice.
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As stated above, the undersigned is required to screen complaints in civil actions in which prisoners
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seek relief from governmental entities, officers or employees. 28 U.S.C. § 1915A(a). No screening
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has yet occurred and service of Plaintiff’s complaint has not yet been authorized. Should Plaintiff’s
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complaint proceed beyond the screening stage, the Court will order service, and issue an order setting
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a schedule for discovery and dispositive motions. Thus, at this juncture, dispositive motions such as
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Plaintiff’s motion for summary judgment are premature, and the motion should therefore be denied,
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without prejudice, to re-filing at the appropriate stage of this litigation.
Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s motion for summary judgment,
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filed February 6, 2017, be denied as premature.
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This Findings and Recommendation will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after
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being served with this Findings and Recommendation, Plaintiff may file written objections with the
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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may
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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)
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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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February 8, 2017
UNITED STATES MAGISTRATE JUDGE
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