Wagner v. Posner et al

Filing 132

ORDER denying 128 Motion for declaratory judgment signed by Magistrate Judge Kendall J. Newman on 08/10/12. (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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CLINTON WAGNER,

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Plaintiff,

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No. 2: 09-cv-3166 KJM KJN P

vs.
MOSS POSNER, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s August 7, 2012 motion for

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declaratory judgment. On August 8, 2012, defendants filed an opposition to this motion. For the

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following reasons, plaintiff’s motion for declaratory judgment is denied.

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On July 6, 2012 the court granted in part and denied in part defendants’ summary

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judgment motion. In particular, the court denied defendants’ summary judgment motion as to

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claims made against defendants Nangalama and Sahota. In the pending motion, plaintiff moves

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for “declaratory judgment” against defendants Nangalama and Sahota.

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“[A] party may not make a motion for declaratory relief, but rather, the party must

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bring an action for a declaratory judgment.” Kam–Ko Bio–Pharm Trading Co. Ltd–Australasia

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v. Mayne Pharma (USA) Inc., 560 F.3d 935, 943 (9th Cir. 2009) (quoting Int’l Bhd. of Teamsters
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v. E. Conference of Teamsters, 160 F.R.D. 452, 456 (S.D.N.Y. 1995). Such a motion is

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inconsistent with the Federal Rules of Civil Procedure. Id. A court may properly construe a

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motion for declaratory relief as a motion for summary judgment. See id.

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The undersigned does not construe plaintiff’s motion for declaratory judgment as

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a motion for summary judgment because it does not meet the requirements of a summary

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judgment motion. Moreover, the deadline for filing a summary judgment motion has passed.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for declaratory

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judgment (Dkt. No. 128) is denied.

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DATED: August 10, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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wag3166.dec

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