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Rouser v. Rutherford

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 14, 2009

WILLIAM ROUSER, PLAINTIFF,
v.
K. RUTHERFORD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

Order

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's April 6, 2009, motion for summary judgment. For the following reasons, the court orders that the motion be vacated without prejudice to its renewal.

On April 22, 2009, defendants filed a request for extension of time to file an opposition to plaintiff's motion. The court construes defendants' request for an extension of time as an opposition pursuant to Fed. R. Civ. P. 56(f). Rule 56(f) provides,

If a party opposing the [summary judgment] motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

1) deny the motion;

2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or

3) issue any other just order.

Fed. R. Civ. P. 56(f).

Defendants state that they cannot oppose plaintiff's motion because they have not had sufficient time to conduct discovery. On January 8, 2009, the court denied defendants' motion to dismiss and ordered them to file an answer within thirty days. On February 5, 2009, defendants filed an answer. The court has not yet issued a scheduling order.

The court agrees that defendants have not had sufficient time to conduct discovery. On this ground, plaintiff's summary judgment motion is vacated as premature. Plaintiff may re-file his motion in accordance with the dates set forth in the scheduling order to be issue simultaneously with this order. Plaintiff is not required to re-file his entire motion. Rather, he may file a request to reinstate his motion.

Accordingly, IT IS HEREBY ORDERED that plaintiff's April 6, 2009, motion for summary judgment (no. 32) is vacated without prejudice to its reinstatement in accordance with the dates set in the scheduling order.

20090514

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