ORDER and REPORT AND RECOMMENDATION

CHARLES J. KAHN, Jr., Magistrate Judge.

Plaintiff, proceeding pro se and in forma pauperis, has filed a motion for summary judgment. (Doc. 23). Plaintiff indicates "[t]he Motion is made on the ground that the pleading, interrogatories and depositions filed in the action the attached affidavit of Plaintiff sufficiently establish, Plaintiffs cause of action to warrant direction of judgment in favor of plaintiff as a matter of law, and show the absence of the triable issue of fact in this action." Plaintiff also notes defendant Nichols has failed to "serve any answer or otherwise defend within the time prescribe by law."

The motion for summary judgment should be denied. The court has not entered a scheduling order permitting discovery and plaintiff has not established "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(a). Counsel, however, previously filed a Notice of Appearance on behalf of defendant Nichols. (Doc. 14). Nichols, therefore, will be directed to respond to the complaint within 21 days.

Accordingly, it is ORDERED:

1. The clerk shall update the docket to reflect that defendant T. Nichols is the sole defendant in this action.*

2. Within twenty-one (21) days from the date of this order, defendant Nichols shall file a response to the complaint (doc. 1).

And it is respectfully RECOMMENDED:

1. That plaintiff's motion for summary judgment (doc. 23) be DENIED.