United States District Court, E.D. Louisiana
PARTIAL REPORT AND RECOMMENDATION
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
plaintiff, Michael Jerome Fox (“Fox”) has filed
ex parte a Motion for Judgment on the
Pleadings (Rec. Doc. No. 20). The matter was
referred to a United States Magistrate Judge to conduct a
hearing, including an evidentiary hearing, if necessary, and
to submit proposed findings and recommendations for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B)
and (C) and § 1915A, and as applicable,
42 U.S.C. § 1997e(c)(1) and (2). Upon
review of the entire record, the Court has determined that
the matter can be disposed of without an evidentiary hearing.
filed a pro se and in forma pauperis
complaint pursuant to 42 U.S.C. § 1983 against the
defendants, Sheriff Randy Seals, Chief Mike Haley, Warden Jim
Miller, Assistant Warden Angie McMorris, Dr. Jerry Thomas,
and Nurse Joan, each employed with the Washington Parish
Sheriff's Office and the Washington Parish Jail. He
alleges that the conditions of his confinement at the
Washington Parish Jail were unconstitutional.
filed the instant motion summarily seeking judgment in his
favor under Fed.R.Civ.P. 12(c) based on the claims asserted
in his complaint and the documents received from defendants
following the Spears Hearing held in this matter on
January 24, 2019. For the following reasons, Fox's
motion is not in proper form and is otherwise premature.
filed his motion ex parte without noticing the
matter for adversarial hearing. The Local Rules of this Court
require that an adversarial motion like that filed by Fox
must be noticed for submission to allow the opposing party
requisite time to respond. L.R. 7.2. Fox failed to comply
with this and the related rules of this Court.
addition, Fed.R.Civ.P. 12(c) provides that,
“[a]fter the pleadings are closed - but early
enough not to delay trial - a party may move for judgment on
the pleadings.” (emphasis added). The United States
Fifth Circuit Court of Appeals has not clarified what
“closed” means for purposes of Rule 12(c);
however, courts in other circuits have held that a motion for
judgment on the pleadings is premature unless every defendant
has filed an answer. See, e.g., Shame on You Prods., Inc.
v. Banks, 120 F.Supp.3d 1123, 1142 (C.D. Cal. 2015),
aff'd, Shame on You Prods., Inc. v.
Banks, 690 Fed.Appx. 519 (9th Cir. 2017);
Habeeba's Dance of the Arts, Ltd. v. Knoblauch,
No. 05-CV-926, 2006 WL 968642, at *2 (S.D. Ohio Apr. 10,
2006); Grassmueck v. Barnett, No. C03-122P, 2003 WL
22128337, at *2 (W.D. Wash. Jul. 7, 2003).
case, only four of the six named and served defendants have
filed a responsive pleading to Fox's
complaint. The pleadings, therefore, have not been
closed as required for the filing of this type of motion. The
request by Fox is, therefore, premature and the Court is
unable to consider the substance of his motion and it must be
dismissed as premature without addressing its merit.
Accord Jordan v. Def. Fin. and Acct'ing Servs.,
No. 14-cv-958, 2014 WL 3887748, at *1 (M.D. Fla. Aug. 7,
2014) (finding that the plaintiffs Rule 12(c) motion for
judgment on the pleadings filed before defendants filed
answers to the complaint was premature).
the Court is engaged in the frivolousness review of
plaintiffs claims as statutorily required under 28 U.S.C.
§ 1915, § 1915A and 42 U.S.C. § 1997e. By this
means, the Court will determine which, if any, of plaintiffs
claims will survive this initial screening for further
review. Until such time, the plaintiff is premature in his
ability to establish his entitlement to judgment on the
pleadings under the Rule 12(c) standards.
therefore RECOMMENDED that Fox's
Motion for Judgment on the Pleadings (Rec. Doc. No.
20) be DENIED as premature.
party's failure to file written objections to the
proposed findings, conclusions, and recommendations 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, provided that the party has been served
with notice that such ...