Baker v. German, et al.

Filing 13

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DOMINIQUE D. BAKER, 12 13 14 15 Plaintiff, v. HUMBERTO GERMAN, et al., Defendants. 16 17 18 19 20 21 22 23 ) ) ) ) ) ) ) ) ) ) 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 24 screen complaints brought by prisoners seeking relief against a governmental entity or officer or 25 employee of a governmental entity. 28 U.S.C. § 1915A(a). The screening requirement is statutory 26 mandated in this instance and the Court cannot waive such requirement. Thus, Defendants are not 27 required to file an answer or other pleading in response to Plaintiff’s complaint until after the Court 28 has completed its mandatory screening process to determine whether Plaintiff states any cognizable 1 1 claims. Furthermore, as stated in the Court’s December 16, 2016, order, the Court has an extremely 2 large number of pro se plaintiff civil rights cases pending before it and the Court will screen the 3 complaint in due course. Plaintiff’s motion for summary judgment is premature and must be denied without prejudice. 4 5 As stated above, the undersigned is required to screen complaints in civil actions in which prisoners 6 seek relief from governmental entities, officers or employees. 28 U.S.C. § 1915A(a). No screening 7 has yet occurred and service of Plaintiff’s complaint has not yet been authorized. Should Plaintiff’s 8 complaint proceed beyond the screening stage, the Court will order service, and issue an order setting 9 a schedule for discovery and dispositive motions. Thus, at this juncture, dispositive motions such as 10 Plaintiff’s motion for summary judgment are premature, and the motion should therefore be denied, 11 without prejudice, to re-filing at the appropriate stage of this litigation. Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s motion for summary judgment, 12 13 filed February 6, 2017, be denied as premature. 14 This Findings and Recommendation will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after 16 being served with this Findings and Recommendation, Plaintiff may file written objections with the 17 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 18 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 19 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 20 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 IT IS SO ORDERED. 23 Dated: 24 February 8, 2017 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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