(PC) Hammler v. Director of CDCR ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, No. 2:17-cv-1949 MCE DB P 12 Plaintiff, 13 v. ORDER 14 DIRECTOR OF CDCR, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action pursuant to 42 U.S.C. § 1983. Plaintiff claims prison officials have failed to provide him 19 with safe living conditions in violation of the Eighth Amendment. Presently before the court is 20 plaintiff’s motion for summary judgment (ECF No. 77) and defendant’s opposition (ECF No. 82). 21 On September 16, 2019, plaintiff filed a motion for summary judgment. (ECF No. 77.) 22 He argues the court should grant summary judgment because defendants are following the 23 housing policy he challenges in this case and the only “remaining question is whether the 24 defendant’s continuing in the course is legal.” (Id. at 1.) 25 Defendant filed an opposition arguing that the court should deny the motion because the 26 court has not yet ruled on the pending motion to dismiss, the parties have not yet engaged in 27 discovery, and plaintiff’s motion fails to comply with Local Rule 260(a). (ECF No. 82.) 28 //// 1 “[ T]he plain language of Rule 56(c) mandates the entry of summary judgment, after 2 | adequate time for discovery and upon motion, against a party who fails to make a showing 3 | sufficient to establish the existence of an element essential to that party’s case, and on which that 4 | party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) 5 | (emphasis added). Defendant is entitled to conduct discovery before opposing a summary 6 | judgment motion. Fed. R. Civ. P. 56. Here, the motion to dismiss has not yet been resolved and 7 | the parties have yet to engage in discovery. Thus, plaintiffs motion for summary judgment 8 || should be denied as premature. However, plaintiff may file a future motion for summary 9 | judgment that incorporates all relevant materials obtained after the period set for the completion 10 | of all discovery as contemplated by Rule 56. See Gordon v. Marquez, 2019 WL 1017323 at *1 11 | (E.D. Cal. Mar. 4, 2019) (denying as premature plaintiff's motion for summary for summary 12 | judgment filed before the parties conducted discovery, but noting that plaintiff could file a future 13 | motion for summary judgment following a period of discovery). Accordingly, the court will deny 14 | plaintiff's motion for summary judgment without prejudice. 15 IT IS HEREBY ORDERED that plaintiff's motion for summary judgment (ECF No. 77) 16 | is denied without prejudice. 17 | Dated: February 7, 2020 19 0 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 DLB:12 28 | DB/prisoner-civil rights/hamm1049.summ.prem 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28