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Gholson v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


August 24, 2006

JIMMIE GHOLSON, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Proud, Magistrate Judge

ORDER

Before the Court is plaintiff Jimmie Gholson's motion for summary judgment. (Doc. 8). Plaintiff filed the subject motion on December 22, 2005, shortly after he filed his complaint and sought to proceed as a pauper, without paying the filing fee. Yesterday, August 23, 2006, the complaint cleared the Court's threshold review and the U.S. Marshal was directed to effect service of the complaint on plaintiff's behalf. (Doc. 10). To date, no defendants have been served with the complaint, let alone the motion for summary judgment, and no defendants have entered their appearance in this case.

Federal Rule of Civil Procedure 56(a) dictates that a motion for summary judgment cannot be asserted until "the expiration of 20 days from the commencement of the action." For purposes of Rule 56(a), the commencement of this action was when the case passed threshold review. See Fed.R.Civ.P. 56, Advisory Committee Notes, 1946 Amendment, Note to Subdivision (a) (noting that the 20 day period was designed to allow plaintiffs an expeditious opportunity to move for summary judgment, but also to permit defendants an opportunity to secure counsel and determine a course of action); see generally Ford v. Johnson, 362 F.3d 395, 398-399 (7th Cir. 2004) (discussing how the meanings of "filed," "commenced" and "brought" can vary, depending on the preliminary proceeding at issue). Therefore, plaintiff's motion for summary judgment is premature.

IT IS THEREFORE ORDERED that plaintiff's motion for summary judgment (Doc. 8) is STRICKEN AS PREMATURE. Plaintiff is free to re-file his motion in accordance with Federal Rule of Civil Procedure 56(a). From a logistical standpoint, plaintiff may want to hold-off filing his motion until at least one defendant has entered his appearance, so that some defendant can be served with the motion and given an opportunity to respond, as due process requires.

IT IS SO ORDERED.

CLIFFORD J. PROUD U. S. MAGISTRATE JUDGE

20060824

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