(PC) Mills v. Jones ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS K. MILLS, No. 1:23-cv-01214-JLT-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING PLAINTIFF’S MOTION 13 v. FOR SUMMARY JUDGMENT BE DENIED 14 ZACHERY JONES, et al. (ECF No. 22) 15 Defendants. 16 17 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 18 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for summary judgment, filed December 7, 20 2023. (ECF No. 22.) Plaintiff’s motion must be denied. 21 This action is proceeding against Defendants Zachery Jones and Javier Rivera for 22 excessive force in violation of the Eighth Amendment. 23 I. 24 DISCUSSION 25 “The court shall grant summary judgment if the movant shows that there is no genuine 26 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 27 Civ. P. 56(a). A party moving for summary judgment must include a “Statement of Undisputed 28 Facts.” Local Rule 260(a). Furthermore, this Court's local rule requires each motion of summary 1 judgment to include “a ‘Statement of Undisputed Facts’ that shall enumerate discretely each of 2 the specific material facts relied upon in support of the motion and cite the particular points of 3 any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied 4 upon to establish that fact.” To establish the absence of a genuine factual dispute, Plaintiff must 5 cite “to particular parts of materials in the record, including depositions, documents, 6 electronically stored information, affidavits or declarations, stipulations (including those made for 7 purposes of the motion only), admissions, interrogatory answers, or other materials ...” Fed. R. 8 Civ. P. 56(c)(1)(A); see also Local Rule 260(a). Plaintiff's Motion fails to comport with Fed. R. 9 Civ. P. 56(a) and Local Rule 260(a). 10 Without ruling on the merits of Plaintiff's motion, his motion is procedurally deficient 11 because it neither contains a statement of undisputed facts, nor cites to any evidence to establish a 12 fact. As a result, Plaintiff's motion is procedurally deficient under Fed. R. Civ. P. 56 and Local 13 Rule 260(a). Further, Plaintiff's motion for summary judgment is premature. By way of separate 14 order issued this same date, the Court has ordered electronic service on Defendants. Thus, 15 Defendants have not yet been served nor filed an answer in this action. Consequently, the Court 16 has not yet issued its discovery order and discovery has not yet commenced. As a result, in 17 addition to being procedurally deficient, Plaintiff's motion should be denied as premature. See 18 Hammler v. Hernandez, No. 1:19-cv-00616-SKO (PC), 2022 WL 16637658 (E.D. Cal. Nov. 2, 19 2022). 20 II. 21 RECOMMENDATION 22 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion for 23 summary judgment be denied as procedurally deficient and premature. 24 This Findings and Recommendation will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 26 days after being served with this Findings and Recommendation, Plaintiff may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ December 8, 2023 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28