(PC) Montenegro v. Moore ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN MONTENEGRO, ) Case No.: 1:19-cv-00430-DAD-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) RECOMMENDING PLAINTIFF’S MOTION FOR SUMMARY JUDMENT BE DENIED, 14 DAVID MOORE, et.al., ) WITHOUT PREJUDICE ) 15 Defendants. ) [ECF No. 32] ) 16 ) ) 17 ) 18 Plaintiff Juan Montenegro is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 This action proceeds against Defendants David Moore and M. Garcia for excessive force in 21 violation of the Eighth Amendment. 22 Currently before the Court is Plaintiff’s motion for summary judgment, filed January 21, 2020. 23 As an initial matter, Plaintiff’s motion is premature, as discovery just began on December 4, 24 2019, Defendants have not been given the opportunity to discover any facts or information necessary 25 in drafting an opposition. In addition, Plaintiff’s motion did not comply with Local Rule 260(a), 26 which requires that “[e]ach motion for summary judgment or summary adjudication shall be 27 accompanied by a ‘Statement of Undisputed Facts’ that shall enumerate discretely each of the specific 28 material relied upon in support of the motion and cite the particular portions of any pleading, affidavit, 1 || deposition, interrogatory answer, admission, or other document relied upon to establish that fact.” 2 || Compliance with Local Rule 260(a) is mandatory, and as a result of Plaintiffs failure to include a 3 || Statement of Undisputed Facts with his motion, it is procedurally defective and should be denied, 4 || without prejudice, on that ground. Accordingly, it is HEREBY RECOMMENDED that □□□□□□□□□□ 5 || motion for summary judgment be DENIED, without prejudice. 6 This Findings and Recommendation will be submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days 8 || after being served with this Findings and Recommendation, the parties may file written objections 9 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 10 || Recommendation.” The parties are advised that failure to file objections within the specified time mz 11 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 12 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 IS SO ORDERED. Bl fee 1S Dated: _ J anuary 23, 2020 OF 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28