Scanlon v. Sisto et al

Filing 41

ORDER signed by Magistrate Judge Carolyn K. Delaney on 09/16/11 denying 37 Motion for Summary Judgment and denying 39 Motion for Extension of time. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID BRIAN SCANLAN

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Plaintiff,

CIV S-09-2808 CKD P

vs.

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D.K. SISTO, et al.
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an

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action under 42 U.S.C. § 1983. On July 25, 2011, plaintiff filed a motion for summary judgment.

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When plaintiff filed the motion, defendants had already filed a motion to dismiss, which remains

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pending. Defendants now seek an extension of time in which to respond to the motion for

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summary judgment, asking that they be excused from filing an opposition until after the court

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rules on their motion to dismiss.

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Defendants are correct that they need not respond to the motion for summary

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judgment before the court rules on their motion to dismiss. However, there is no need for an

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extension of time. The defendants filed their motion to dismiss in lieu of an answer; the time for

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discovery does not begin until after a defendant filed an answer; therefore, the discovery period

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for this case has not yet begun. Usually, a motion for summary judgment is appropriate only

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after the parties have had an opportunity to develop the factual underpinnings of a case through
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discovery. This case is no exception, so the motion for summary judgment is premature. The

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court will deny it without prejudice. Plaintiff will have the opportunity to renew the motion or

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file a new motion for summary judgment according to the scheduling order that the court will

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issue after the defendants have filed their answers.1

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Accordingly, IT IS HEREBY ORDERED that:

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1. The motion for summary judgment (Docket No. 37) is denied without

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prejudice, as premature.

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2. The motion for an extension of time in which to respond to the motion for
summary judgment (Docket No. 39) is denied as moot.
Dated: September 16, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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scan2808.ord

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With this order, the court expresses no opinion or finding on the merit of the pending
motion to dismiss.
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