Scanlon v. Sisto et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DAVID BRIAN SCANLAN
CIV S-09-2808 CKD P
D.K. SISTO, et al.
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an
action under 42 U.S.C. § 1983. On July 25, 2011, plaintiff filed a motion for summary judgment.
When plaintiff filed the motion, defendants had already filed a motion to dismiss, which remains
pending. Defendants now seek an extension of time in which to respond to the motion for
summary judgment, asking that they be excused from filing an opposition until after the court
rules on their motion to dismiss.
Defendants are correct that they need not respond to the motion for summary
judgment before the court rules on their motion to dismiss. However, there is no need for an
extension of time. The defendants filed their motion to dismiss in lieu of an answer; the time for
discovery does not begin until after a defendant filed an answer; therefore, the discovery period
for this case has not yet begun. Usually, a motion for summary judgment is appropriate only
after the parties have had an opportunity to develop the factual underpinnings of a case through
discovery. This case is no exception, so the motion for summary judgment is premature. The
court will deny it without prejudice. Plaintiff will have the opportunity to renew the motion or
file a new motion for summary judgment according to the scheduling order that the court will
issue after the defendants have filed their answers.1
Accordingly, IT IS HEREBY ORDERED that:
1. The motion for summary judgment (Docket No. 37) is denied without
prejudice, as premature.
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
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
With this order, the court expresses no opinion or finding on the merit of the pending
motion to dismiss.
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