(PC) Owens v. Brewer

Filing 38

ORDER signed by Magistrate Judge Chi Soo Kim on 7/8/2024 VACATING 18 , 21 Motions for Summary Judgment. Following resolution of 37 Motion to Dismiss, if appropriate, these motions will be reinstated. (Huang, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THEON OWENS, 12 13 14 15 No. 2:22-cv-1765 CSK P Plaintiff, v. ORDER A. BREWER, et al., Defendants. 16 17 Plaintiff is a former state prisoner, proceeding without counsel, with a civil rights action 18 pursuant to 42 U.S.C. § 1983. For the reasons stated herein, the pending cross-motions for 19 summary judgment are vacated. 20 On November 16, 2022, the Court granted plaintiff’s application to proceed in forma 21 pauperis and ordered the complaint served on defendant Brewer. (ECF No. 6.) Plaintiff filed a 22 summary judgment motion on January 4, 2024. (ECF No. 18.) Defendant filed a summary 23 judgment motion on February 22, 2024. (ECF No. 21.) On July 1, 2024, defendant filed a 24 motion to dismiss pursuant to 28 U.S.C. § 1915(e)(2)(A), which requires that the court “shall” 25 dismiss case at any time if the court determines that allegation of poverty in application to 26 proceed in forma pauperis is untrue. (ECF No. 37.) Defendant argues that in plaintiff’s 27 application to proceed in forma pauperis, plaintiff falsely stated under oath that he had not 28 received any income within twelve months of his application to proceed in forma pauperis despite 1 1 the fact that plaintiff received $50,000 in settlement income and had access to those funds. (Id.) 2 This Court therefore finds that defendant’s motion to dismiss must be resolved prior to the 3 Court’s consideration of the pending cross-motions for summary judgment. See 4 28 U.S.C. § 1915(e)(2)(A). 5 Accordingly, IT IS HEREBY ORDERED that the pending cross-motions for summary 6 judgment (ECF Nos. 18, 21) are vacated. Following resolution of defendant’s motion to dismiss, 7 if appropriate, these motions will be reinstated. 8 9 Dated: July 8, 2024 10 11 12 13 Owens1765.vac 14 2 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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