Opinion
Civil Action 2:21-CV-00208
04-06-2022
SCOTT F. CREE, Plaintiff, v. BRACO, et al., Defendants.
MEMORANDUM AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Julie K. Hampton United States Magistrate Judge
Plaintiff Scott F. Cree, an inmate proceeding pro se, has filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's motion, which the undersigned construes as a motion for summary judgment. (D.E. 35).
On March 11, 2022, the undersigned issued a Memorandum and Recommendation, recommending that the Court retain only Plaintiff's Eighth Amendment claim for failure to protect against Sgt. Braco in his individual capacity. (D.E. 31). That same day, the undersigned ordered service of Plaintiff's complaint on Sgt. Braco. (D.E. 32). Plaintiff submits to the Court medical documents and a list of purportedly undisputed facts in support of his request for summary judgment. (D.E. 35).
“Federal courts are permitted to dismiss a summary judgment motion without prejudice if it is filed before any party answers.” Watkins v. Monroe, No. 6:18cv347, 2019 WL 1869864, at *1 (E.D. Tex. Mar. 27, 2019). Here, Sgt. Braco has yet to file an answer or other responsive pleading in this case. Additionally, no discovery has taken place, and no scheduling order regarding the deadline for discovery or the filing of dispositive motions has been issued in this case. See Alabama Farm Bureau Mut. Cas. Co., Inc. v. American Fidelity Life Ins. Co., 606 F.2d 602, 608 (5th Cir. 1979) (recognizing that summary judgment motions should not “ordinarily be granted before discovery has been completed”).
Accordingly, the undersigned respectfully recommends that Plaintiff's motion, construed as a motion for summary judgment (D.E. 35), be DENIED without prejudice as premature.
Respectfully submitted on April 6, 2022.
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern District of Texas.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)(en banc).