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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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 DAVID BRIAN SCANLAN 10 11 Plaintiff, CIV S-09-2808 CKD P vs. 12 D.K. SISTO, et al. 13 Defendants. 14 ORDER / 15 Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an 16 action under 42 U.S.C. ยง 1983. On July 25, 2011, plaintiff filed a motion for summary judgment. 17 When plaintiff filed the motion, defendants had already filed a motion to dismiss, which remains 18 pending. Defendants now seek an extension of time in which to respond to the motion for 19 summary judgment, asking that they be excused from filing an opposition until after the court 20 rules on their motion to dismiss. 21 Defendants are correct that they need not respond to the motion for summary 22 judgment before the court rules on their motion to dismiss. However, there is no need for an 23 extension of time. The defendants filed their motion to dismiss in lieu of an answer; the time for 24 discovery does not begin until after a defendant filed an answer; therefore, the discovery period 25 for this case has not yet begun. Usually, a motion for summary judgment is appropriate only 26 after the parties have had an opportunity to develop the factual underpinnings of a case through 1 1 discovery. This case is no exception, so the motion for summary judgment is premature. The 2 court will deny it without prejudice. Plaintiff will have the opportunity to renew the motion or 3 file a new motion for summary judgment according to the scheduling order that the court will 4 issue after the defendants have filed their answers.1 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The motion for summary judgment (Docket No. 37) is denied without 7 prejudice, as premature. 8 9 10 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 11 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 3 scan2808.ord 17 18 19 20 21 22 23 24 25 1 26 With this order, the court expresses no opinion or finding on the merit of the pending motion to dismiss. 2

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