(PC)Foster v. Burnes

Opinion

RICKY TYRONE FOSTER, Case No. 1:22-cv-00934- HBK (PC) Plaintiff, ORDER GRANTING MOTION FOR SCREENING v. (Doc. No. 2) J. BURNES and T. CAMPBELL, ORDER DISMISSING PLAINTIFF’S Defendants. MOTION FOR SUMMARY WITHOUT PREJUDICE (Doc. No. 5)

This matter comes before the Court upon initial review of the docket. Plaintiff Ricky Foster is a state prisoner proceeding pro se in this civil rights action which was filed in the Kings County Superior Court and removed by Defendants to this Court on July 28, 2022. (Doc. No. 1). Consistent with the Prison Litigation Reform Act, Defendants request the Court to screen Plaintiff’s operative complaint pursuant to 28 U.S.C. § 1915A prior to Defendants having to file a response to the complaint. (Doc. No. 2). Prior to the Court issuing a screening order, Plaintiff filed a Motion for Summary Judgment. (Doc. No. 5, “MSJ”). Defendants filed a response in opposition to the MSJ, noting the MSJ was procedurally defective and violative of the Court’s First Information Order in Prisoner/Civil Detainee Civil Rights Action (Doc. No. 3) given that Plaintiff’s operative complaint had not yet been screened. (Doc. No. 6 at 2). Without ruling on the merits of Plaintiff's MSJ, the Court finds the MSJ is violative of the Court’s First Information Order in Prisoner/Civil Detainee Civil Rights Action because the Court has not screened the operative complaint and Defendants have not been ordered to respond. Thus, the MSJ is premature. See Hammler v. Hernandez, 2022 WL 16637658 (E.D. Cal. Nov. 2, 2022). Furthermore, Plaintiff's MSJ does not contain a statement of undisputed facts, and does not cite to any evidence in the record to support his argument. (See generally Doc. No. 5). Therefore, the Court also finds the MSJ procedurally deficient under Federal Rule of Civil Procedure 56 and Local Rule 260(a). The Court will issue a screening order on the operative | complaint, attached as Exhibit A to Notice of Removal (Doc. No. | at 4-39) by separate order. ACCORDINGLY, it is ORDERED: 1. Defendants’ motion for the Court to screen the complaint (Doc. No. 2) is GRANTED to the extent the Court will issue a screening order on the operative complaint (Doc. No. | at 4-39) by separate order. Defendants need not file a response to the complaint until the court issues a screening order. 2. Plaintiffs Motion for Summary Judgment (Doc. No. 5) is DISMISSED without prejudice as procedurally deficient and premature. Dated: _ May 31. 2023 Mihaw. Wh. foareh Zaskth HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE