(PC) Coleman v. Virga ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT COLEMAN, No. 2:17-cv-0851 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 T. VIRGA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 11, 2021, the magistrate judge filed findings and recommendations, ECF No. 21 98, which were served on all parties and which contained notice to all parties that any objections 22 to the findings and recommendations were to be filed within fourteen days. Plaintiff has filed 23 objections to the findings and recommendations, ECF No. 99, defendants have filed a response to 24 plaintiff’s objections, ECF No. 100, and plaintiff has filed a reply to defendants’ response, ECF 25 No. 101. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 27 court has conducted a de novo review of this case. Having reviewed the file, for the reasons 28 explained in this order the court declines to adopt the findings and recommendations at this time 1 and refers the matter back to the assigned magistrate judge for further proceedings consistent with 2 this order. 3 The magistrate judge recommends granting defendants’ June 9, 2020 motion for summary 4 judgment, ECF No. 80, and striking plaintiff’s cross-motion for summary judgment, ECF No. 84, 5 as untimely, ECF No. 98 at 40. The deadline for filing dispositive motions in this action was 6 June 12, 2020. ECF No. 76. Defendants timely filed their motion for summary judgment on 7 June 9, 2020. ECF No. 80. Plaintiff’s opposition to the motion was due twenty-one days after 8 service of the motion. See ECF No. 21 at 3; ECF No. 65 at 5. On June 29, 2020, plaintiff timely 9 filed an opposition to defendants’ motion for summary judgment. ECF No. 84. Plaintiff included 10 a cross-motion for summary judgment with his opposition. Id. 11 Local Rule 230(e) provides: 12 (e) Related or Counter-Motions. Any counter-motion or other motion that a party may desire to make that is related to the general subject 13 matter of the original motion shall be served and filed in the manner and on the date prescribed for the filing of opposition. If a counter-motion 14 or other related motion is filed, the Court may continue the hearing on the original and all related motions so as to give all parties reasonable 15 opportunity to serve and file oppositions and replies to all pending motions. 16 17 L.R. 230(e) (E.D. Cal.). Plaintiff’s cross-motion for summary judgment is a “counter-motion . . . 18 related to the general subject of the original motion” and was filed as part of plaintiff’s timely 19 opposition. It is therefore timely under Local Rule 230(e). 20 Though recommending plaintiff’s cross-motion be stricken, the magistrate judge 21 considered “the arguments and evidence in support of” that motion “as part of plaintiff’s 22 opposition to defendants’ summary judgment motion.” ECF No. 98 at 2. However, “when 23 parties submit cross-motions for summary judgment, ‘each motion must be considered on its own 24 merits.’” Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 25 (9th Cir. 2001). Because plaintiff’s cross-motion for summary judgment is timely under Local 26 Rule 230(e) it must be separately analyzed and considered on its own merits. Accordingly, this 27 court will defer consideration of the findings and recommendations on defendants’ motion for 28 ///// 1 | summary judgment and refer the matter back to the assigned magistrate judge for further 2 || proceedings consistent with this order. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The findings and recommendations filed January 11, 2021, are not adopted at this time; 5 2. Plaintiff's cross-motion for summary judgement (ECF No. 84) is timely filed; and 6 3. This matter is referred back to the assigned magistrate judge for further proceedings 7 || consistent with this order. 8 | DATED: September 29, 2021. 9 10 ( ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28