(PC) Coons v. Gosai ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY COONS, No. 2:20-cv-0929 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 A. GOSAI, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. On July 20, 2020, plaintiff filed a 18 document styled, “Motion for Summary Judgment.” (ECF No. 21.) Plaintiff claims that appeal 19 No. MCSP-B-19-05035 has been exhausted, and then states that on November 7, 2019, 20 defendants violated plaintiff’s Eighth Amendment rights, and he has ten witnesses willing to so 21 testify. (ECF No. 21.) 22 Plaintiff’s motion is defective for several reasons. First, to the extent plaintiff is 23 attempting to demonstrate he has exhausted administrative remedies, plaintiff is advised that 24 failure to exhaust is “an affirmative defense the defendant must plead and prove.” Jones v. Bock, 25 549 U.S. 199, 204, 216 (2007). In other words, plaintiff does not have to address the issue of 26 administrative exhaustion unless defendants file a motion raising the issue. 27 Second, plaintiff’s motion is premature. Although defendants have signed waivers of 28 service of process, no defendant has yet filed an answer or otherwise appeared. MASS 2 OVE UINGINTTING IN RAVUTIOCTI Vfee Ye eve 1 Third, no discovery and scheduling order has yet issued. The scheduling order will set a 2 | schedule for the filing of dispositive motions once discovery is completed. 3 Fourth, plaintiff's motion is substantively defective. Although plaintiff wrote 4 | “Declaration of Timothy Coons Jr.” above his motion, the motion is not signed under penalty of 5 || perjury and therefore does not constitute a declaration. Plaintiff is advised that when the court 6 || issues the discovery and scheduling order, plaintiff will be provided information on how to 7 | properly file or oppose a motion for summary judgment. 8 For all of the above reasons, plaintiffs defective motion is denied without prejudice. 9 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion (ECF No. 21) is denied 10 | without prejudice. 11 | Dated: July 29, 2020 1 Fensbl A Abar 13 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 14 /eoon0929.den 15 16 17 18 19 20 21 22 23 24 25 26 27 28