(PC) Hampton v. Alkire

Opinion

1 2 3 4 5 6 7 10 11 GARY G. HAMPTON, JR., No. 2:22-CV-1418-DJC-DMC-P 12 Plaintiff, 13 v. ORDER 14 ALKIRE, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court are the following: (1) Plaintiff's motion for leave to 19 amend, ECF No. 29; (2) Plaintiff's first amended complaint, ECF No. 30; (3) Plaintiff's request 20 for screening of the first amended complaint, ECF No. 32; (4) Plaintiff's second amended 21 complaint, ECF No. 34; (5) Plaintiff's motion for summary judgment, ECF No. 36; and (6) 22 Defendants' motion to strike, ECF No. 37. 23 This action proceeds on Plaintiff's original complaint. See ECF No. 1. On July 24 27, 2023, the Court determined service of the original complaint was appropriate. See ECF No. 25 12. Defendants waived service and filed a motion to dismiss on October 2, 2013. See ECF No. 26 21. Plaintiff did not file an opposition. On June 13, 2024, the Court issued findings and 27 recommendations that Defendants' motion to dismiss be granted based on misjoinder, that Claim I 28 be severed from Claim II, that Claim II proceed in the context of a separate action to be opened 1 by the Clerk of the Court based on the original complaint, and that Claim I be dismissed with 2 leave to amend to allege an actual injury. See ECF No. 28. The findings and recommendations 3 are pending before the District Judge. 4 After the findings and recommendations were issued in June 2024, Plaintiff filed 5 the pending motion for leave to amend, ECF No. 29, as well as a first amended complaint, ECF 6 No. 30, and a second amended complaint, ECF No. 34. Plaintiff also filed the pending request for 7 screening of the first amended complaint. See ECF No. 32. Plaintiff's motion for leave to amend 8 will be denied as premature because the Court's findings and recommendations regarding the 9 original complaint remain pending. See Avila v. McMahon, 2018 WL 4739112, at *1 (E.D. Cal. 10 2018). Plaintiff may renew his motion if the District Judge does not adopt the recommendation 11 that Plaintiff be permitted leave to amend the original complaint. Plaintiff's first amended and 12 second amended complaints will also be stricken, again because the findings and 13 recommendations regarding amendment of the original complaint remain pending. Plaintiff's 14 request for screening of the first amended complaint will be denied as moot. 15 Finally, the Court addresses Plaintiff's filing at ECF No. 36, which has been 16 docketed as a motion for summary judgment. In this filing, Plaintiff asks for "summary 17 judgment" to his case can be placed on a trial calendar in 2025. See ECF No. 26, pgs. 1. It is 18 unclear precisely what relief Plaintiff seeks and, in any event, summary judgment is not a vehicle 19 for trial-setting. Moreover, to the extent Plaintiff does seek summary judgment on any of his 20 claims, such a motion is premature given that the operative pleading remains in flux, no defendant 21 has answered, and the case is not yet at issue. Additionally, as a motion for summary judgment, 22 Plaintiff's motion does not comply with Federal Rule of Civil Procedure 56(c)(1) by identifying 23 the portions of the record and evidence which show that there is no genuine dispute of material 24 facts as to any essential elements of his claims. Plaintiff's motion at ECF No. 36 will also be 25 stricken. 26 Defendants' motion to strike, which seeks essentially the sua sponte rulings 27 outlined above, will be denied as unnecessary. 28 / / / ] Accordingly, IT IS HEREBY ORDERED as follows: 2 1. Plaintiff's motion for leave to amend, ECF No. 29, is DENIED as 3 || premature. 4 2. Plaintiff's first amended complaint, ECF No. 30, and second amended 5 || complaint, ECF No. 34, are STRICKEN as premature. 6 3. Plaintiff's request for screening of the first amended complaint, ECF No. 7 || 32,1s DENIED as moot. 8 4. Plaintiff's filing at ECF No. 36, docketed as a motion for summary 9 || judgment, is STRICKEN as premature and an improper motion. 10 5. Defendants’ motion to strike, ECF No. 37, is DENIED as moot. 1] 12 | Dated: August 12, 2024 Ss..c0_, 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28