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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT LEE HONG,

Plaintiff,

vs. Case No. 4:10cv155-SPM/WCS

WALTER McNEIL, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, a prisoner incarcerated within the Florida Department of Corrections,

filed this civil rights case to challenge the food menu served to prisoners. Doc. 19. 

Plaintiff alleges the high level of soy in the food has caused him health problems which

arose after implementation of the soy protein diet, and he claims his "symptoms are

consistent with the symptoms associated with soy poisoning." Id. A service order was

entered in September, doc. 21, and after service, Defendants filed a motion "to stay this

proceeding and to require Plaintiff to execute authorization for release of medical

records." Doc. 29. Defendants asserted they could not properly respond to Plaintiff's

allegations without review of the Plaintiff's medical records. Id., at 1. The motion was
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granted on December 16, 2010, doc. 20, and the pro se Plaintiff filed a notice of

compliance on February 3, 2011. Doc. 41. 

On February 25, 2011, Defendants filed a motion for summary judgment. Doc.

44. Defendants have not yet filed an Answer to the third amended complaint, doc. 19. 

Plaintiff has objected to Defendants' filing of this motion without leave of court and prior

to entry of an initial scheduling order. Doc. 45. 

This day, I have denied Plaintiff's motion, but agree with Plaintiff that the motion

was filed without leave of court. I recognize that no prejudice exists by the motion

because Plaintiff is being given a discovery period in which to support his claims and

oppose summary judgment. However, there is no need for a motion for summary

judgment to be pending on the docket for many months while the parties engage in

discovery. The motion was filed too soon.

Thus, absent some showing by Defendants that no discovery is needed, I

recommend that the motion for summary judgment be denied without prejudice. 

Defendants may simply re-file the motion if they desire to do so after the conclusion of

the discovery period which has been set by the scheduling order entered this day. 

Defendants should also be directed to file an Answer to Plaintiff's third amended

complaint within ten days of entry of the order adopting this report and recommendation. 

In light of the foregoing, it is respectfully RECOMMENDED that Defendants' first

motion for summary judgment, doc. 44, be DENIED without prejudice as being

prematurely filed and not in accordance with the service order, doc. 21, ¶ 10, and that

Defendants be ORDERED to file an Answer to the third amended complaint within ten

Case 4:10cv155-SPM/WCS
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days of entry of the order adopting this report and recommendation, and this case be

REMANDED for further proceedings. 

IN CHAMBERS at Tallahassee, Florida, on March 14, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case 4:10cv155-SPM/WCS