Porter v. Lemire

TOMARCUS PORTER CIVIL ACTION VERSUS NO. 24-504 CALEB LEMIRE, ET AL. SECTION “E” (2) ORDER Before the Court is a Report and Recommendation issued by the Magistrate Judge, recommending the Court “dismiss Plaintiff’s motion for summary judgment without prejudice as premature.”1 Plaintiff filed a pro se complaint against Defendants, Caleb Lemire, Dustin Luper, Thomas Mitchell, and Lance Wallace,2 asserting 42 U.S.C. § 1983 claims for excessive force, assault, battery, due process violations, deliberate indifference, malfeasance, and failure to supervise.3 In his complaint, Plaintiff alleges that, during an incident on September 8, 2021, Defendants Luper and Lemire used excessive force against him and “slam[med him] on [his] head.”4 Plaintiff alleges Luper and Lemire “made a fabricated report” against him in relation to the incident.5 Plaintiff alleges Mitchell “clearly ignored” Plaintiff’s “complaint and went to talking about the . . . Report.”6 In his first amended complaint, Plaintiff asserts Wallace failed to supervise Mitchell, ignored his report, violated his “equal protection rights,” and “made a fabricated report of documents.”7

1 R. Doc. 58.

2 In both complaints, Plaintiff spells “Wallance,” but in his motion for summary judgment, Plaintiff spells “Wallace.” R. Doc. 4, p. 1; R. Doc. 19,; R. Doc. 57, p. 1. The Court has since issued summons to Lance C.

Wallace. R. Doc. 49.

3 R. Doc. 4. Plaintiff subsequently has filed an amended complaint. R. Doc. 56; 42 U.S.C. § 1983.

4 R. Doc. 4, p. 6.

5 Id. Id. R. Doc. 19. seeks “summary judgment as to the liability of Defendants Caleb Lemire, Dustin Luper, Thomas Mitchell, and Lance Wallace.”9 Plaintiff asserts the same factual allegations from his complaint in support of his motion for summary judgment.10 The Magistrate Judge issued her Report and Recommendation on the Motion for Summary Judgment on November 5, 2024.11 The Magistrate Judge recommended that the Court dismiss Plaintiff’s motion for summary judgment as premature because (1) the Court is awaiting return on service upon one of the Defendants, Lance Wallace,12 (2) no Defendant had filed an answer or responsive pleading at the time of the motion, (3) at the time of the Report and Recommendation, a motion to dismiss by Defendants Lemire, Luper, and Mitchell was still pending,13 and (4) the case is in early stages of litigation.14 Objections to the Report and Recommendation were due November 19, 2024.15 Plaintiff did not file objections to the Report and Recommendation.16 On December 9, 2024, Plaintiff filed a Motion to Withdraw the Motion for Summary Judgment on the basis that the case is still in early stages of litigation, and Defendant Wallace has not yet answered the complaint.17 The Court, after considering the complaint, the record, the applicable law, the Magistrate Judge’s Report and Recommendation, and finding that no party has filed objections to the Report and Recommendation, hereby approves the Magistrate Judge’s

8 R. Doc. 57.

9 R. Doc. 57, p. 1.

10 Id. at pp. 1-2.

11 R. Doc. 58.

12 Summons for Lance Wallace were returned on December 19, 2024. R. Doc. 62.

13 R. Doc. 20. This Court since adopted the Magistrate Judge’s Report and Recommendation and denied the Motion to Dismiss. R. Doc. 59.

14 Id. at p. 4.

15 Id. See 28 U.S.C. § 636(b)(1).

17 R. Doc. 61.

Report and Recommendation and adopts it as its opinion. The Court agrees that the motion for summary judgment is premature, as Wallace has still not answered the complaint, and the case has not proceeded to discovery.18 Furthermore, Plaintiffs motion for summary judgment merely recites the allegations in his complaint.’9 Plaintiff does not include attachments or cite record evidence in support of his motion as required by Federal Rule of Civil Procedure 56.2° Plaintiff also fails to comply with Local Rule 56.1, which requires motions for summary judgment to be accompanied by statements of undisputed material facts.2!

Accordingly; IT IS ORDERED that the Court hereby ADOPTS the Magistrate Judge’s Report and Recommendation,?2 and Plaintiff Tomarcus Porter’s Motion for Summary Judgment?3 is DENIED WITHOUT PREJUDICE as premature.

IT IS FURTHER ORDERED that the Motion to Withdraw the Motion for Summary Judgment?4 is DENIED AS MOOT.

New Orleans, Louisiana, this 20th day of December, 2024.

SUSIE none UNITED STATES DISTRICT JUDGE Cyrio v. Hunt, No. CIV.A. 06-4289, 2008 WL 3851581 (E.D. La. Aug. 13, 2008) ([D]istrict courts are permitted to dismiss a motion for summary judgment without prejudice if it is filed before any party answers.”); Watkins v. Monroe, No. 18CV347, 2019 WL 1869864, at *1 (E.D. Tex. Mar. 27, 2019) (“Federal courts are permitted to dismiss a motion for summary judgment without prejudice if it is filed before any party answers.”), R&R adopted by 2019 WL 1858100, at *1 (E.D. Tex. Apr. 25, 2019).

19 See generally R. Doc. 57.

20 FED. R. CIV. P. 56; see, e.g., Montecino v. LeBlanc, No. CV 18-00711-BAJ-EWD, 2019 WL 7040932 (M.D.

La. Dec. 20, 2019) (adopting Report and Recommendation denying motion for summary judgment on the basis that the motion was premature).

21 T.R, 56.1; Muse v. Louisiana, No. 3:21-CV-02419, 2022 WL 21778332, at *1 (W.D. La. Oct. 31, 2022) (citing Whiting v. Kelly, 55 F. App’x. 896, 899-900 (5th Cir. 2007)) (“Although [Plaintiff] is proceeding pro se, [he] must comply with the Rules of Civil Procedure and the Court's local rules.”).

Doc. 58.

23 R. Doc. 57.

Doc. 61.