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Goolsby v. Carrasco

January 6, 2010

THOMAS GOOLSBY, PLAINTIFF,
v.
M. CARRASCO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT AS PREMATURE (Doc. 9)

Plaintiff Thomas Goolsby ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 31, 2009, Plaintiff filed a motion for partial summary judgment against Defendant Gonzales. Plaintiff contends that he is entitled to summary judgment as to his Eighth Amendment claim against Defendant Gonzales. Because this is Plaintiff's only claim against Defendant Gonzales, this is actually a motion for summary judgment, as opposed to partial summary judgment.

As of the date of this order, Defendant Gonzales has yet to be served with the complaint, and has yet to appear in this action. Furthermore, Plaintiff has not served Defendant with this motion, as required by Federal Rule of Civil Procedure 5. Accordingly, it is HEREBY ORDERED that Plaintiff's motion for summary judgment, filed on December 31, 2009, is DENIED without prejudice as premature.

IT IS SO ORDERED.

20100106

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