(PC) Anderson v. Becerra ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LEWIS ANDERSON, Case No. 1:20-cv-00068-DAD-SAB (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING PLAINTIFF’S MOTION 11 v. FOR SUMMARY JUDGMENT BE DENIED, WITHOUT PREJUDICE 12 XAVIER BECERRA, et al., (ECF No. 7) 13 Defendants. FOURTEEN (14) DAY DEADLINE 14 15 Plaintiff Lewis Anderson is a state prisoner proceeding pro se in this civil rights action 16 pursuant to 42 U.S.C. § 1983. 17 On January 14, 2020, Plaintiff initiated this action by filing a complaint and an application 18 to proceed in forma pauperis. (ECF Nos. 1, 2.) On January 17, 2020, the undersigned issued 19 findings and recommendations, recommending that Plaintiff’s application to proceed in forma 20 pauperis be denied pursuant to 28 U.S.C. § 1915(g), and that Plaintiff be ordered to pay the 21 $400.00 filing fee in full in order to proceed with this action. (ECF No. 4.) The findings and 22 recommendations were served on Plaintiff and contained notice that any objections thereto were 23 to be filed within thirty (30) days after service. (Id. at 4.) On February 3, 2020, Plaintiff filed 24 written objections to the findings and recommendations. (ECF No. 8.) As of this date, Plaintiff’s 25 application to proceed in forma pauperis, (ECF No. 2), and the undersigned’s January 17, 2020 26 findings and recommendations remain pending before the assigned District Judge. 27 Currently before the Court is Plaintiff’s motion for summary judgment, filed on February 28 3, 2020. (ECF No. 7.) 1 “Although [Federal Rule of Civil Procedure 56] allows a motion for summary judgment to 2 be filed at the commencement of an action, in many cases the motion will be premature until the 3 nonmovant has had time to file a responsive pleading or other pretrial proceedings have been 4 had.” Fed. R. Civ. P. 56, Advisory Committee’s Notes (2010 Amendments, Note to Subdivision 5 (b)). Indeed, many courts have denied pre-answer and pre-discovery motions for summary 6 judgment as premature despite technical compliance with the timing provisions of Rule 56. See 7 Williams v. Yuan Chen, No. S-10-1292 CKD P, 2011 WL 4354533, at * 3 (E.D. Cal. Sept. 16, 8 2011) (denying plaintiff’s summary judgment motion as premature where defendant had not yet 9 filed an answer and the court had not issued a discovery order); Moore v. Hubbard, No. CIV-S- 10 06-2187 FCD EFB P, 2009 WL 688897, at *1 (E.D. Cal. Mar. 13, 2009) (recommending that 11 plaintiff’s motion for summary judgment be denied as premature where “discovery has not yet 12 begun, defendants have not yet filed an answer and the court has yet to issue a discovery and 13 scheduling order”). 14 Here, although Plaintiff’s motion for summary judgment technically meets the timing 15 requirements of Federal Rule of Civil Procedure 56(b), Plaintiff’s motion is premature. As it 16 stands, the Court has not yet determined whether Plaintiff has stated any cognizable claims for 17 relief, no defendant has made an appearance in this action, no defendant has filed an answer, and 18 the Court has not yet issued a discovery and scheduling order. 19 Furthermore, Plaintiff’s motion for summary judgment does not comply with Local Rule 20 260(a), which requires that “[e]ach motion for summary judgment or summary adjudication shall 21 be accompanied by a ‘Statement of Undisputed Facts’ that shall enumerate discretely each of the 22 specific material relied upon in support of the motion and cite the particular portions of any 23 pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to 24 establish that fact.” Compliance with Local Rule 260(a) is mandatory. Therefore, since Plaintiff 25 failed to include a Statement of Undisputed Facts with his summary judgment motion, Plaintiff’s 26 summary judgment motion is procedurally defective. 27 /// 28 /// 1 Accordingly, it is HEREBY RECOMMENDED that Plaintiffs motion for summary 2 | judgment, (ECF No. 7), be DENIED, without prejudice. 3 These findings and recommendation will be submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within fourteen 5 | (14) days after being served with these findings and recommendation, Plaintiff may file written 6 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 7 | Findings and Recommendation.” Plaintiff is advised that the failure to file objections within the 8 || specified time may result in the waiver of the “right to challenge the magistrate’s factual 9 | findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 10 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 Db IT IS SO ORDERED. DAM Le 13 | Dated: _February 5, 2020_ OO 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28