(PC) Mills v. Jones ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS K. MILLS, Case No. 1:21-cv-01193-ADA-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR 13 v. PARTIAL SUMMARY JUDGMENT 14 Z. JONES and J. RIVERA, FOURTEEN DAY OBJECTION PERIOD 15 Defendants. (Doc. No. 123) 16 17 Pending before the Court is Plaintiff’s “motion for partial summary judgment” filed on 18 July 29, 2022. (Doc. No. 123, “MSJ”). Defendants filed an opposition in their September 14, 19 2022 omnibus response. (Doc. No. 137). For the reasons below, the undersigned recommends 20 the District Court deny Plaintiff’s MSJ. 21 I. SUMMARY JUDGMENT STANDARD 22 Summary judgment is appropriate when there is “no genuine dispute as to any material 23 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is 24 material where it is (1) relevant to an element of a claim or a defense under the substantive law 25 and (2) would affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 26 247 (1987). Similarly, Local Rule 260(a), each motion for summary judgment “shall be 27 accompanied by a ‘Statement of Undisputed Facts’ that shall enumerate discretely each of the specific 28 material facts relied upon in support of the motion and cite to particular portions of any pleading . . . 1 or other document relied upon to establish that fact.” Local Rule 260(a). The party moving for 2 summary judgment bears the initial burden of proving the absence of a genuine dispute of 3 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 4 II. BACKGROUND 5 Plaintiff, a state prisoner, is proceeding pro se on his First Amended Complaint (“FAC”) 6 filed under 42 U.S.C. § 1983. (Doc. No. 7). Plaintiff alleges that while incarcerated at North 7 Kern State Prison correctional officers Jones and Rivera violated his Eighth Amendment right by 8 using excessive force when they pushed him to the ground, punched him in the face multiple 9 times, slapped his face several times, and kicked him in his chest. (Doc. No. 7 at 3). Plaintiff 10 was handcuffed during the chain of events. (Id.). Defendants filed an answer denying the 11 allegations in the FAC and asserting various affirmative defenses. (Doc. No. 47). The Court 12 entered a Scheduling and Discovery Order on July 25, 2022. (Doc. No. 120). Procedurally, this 13 case is at the early stages of litigation. Notably, after filing his MSJ, Plaintiff filed motions to 14 amend his FAC and lodged second amended complaints. See motions to amend and lodged 15 second amended complaints filed on August 1, 2022 and September 8, 2022, respectively. (Docs. 16 Nos. 124, 125, 134, 135). The Court recently extended the time period for Defendants to file an 17 exhaustion -based motion for summary judgment and Defendants filed their exhaustion-based 18 motion for summary judgment on October 31, 2022. (Doc. Nos. 147, 151 ). 19 III. ANALYSIS 20 The MSJ comprises six pages. Although labeled a “partial” summary judgment, Plaintiff 21 requests that Court grant him “summary judgment as to the liability of Defendants” and 22 “damages.” (Doc. 123 at 2). Plaintiff attaches 31 pages of exhibits to his MSJ. (Id. at 7-38). 23 The exhibits appear to be Plaintiff’s unauthenticated medical records. 24 Defendants oppose the MSJ on the grounds that the facts are unsupported and Plaintiff 25 fails to submit any admissible evidence in support of his facts. (Doc. No. 137 at 20). Defendants 26 also request the Court deny the MSJ under Fed. R. Civ. P. 56(d) because Defendants have not yet 27 been able to engage in fact discovery. (Id. at 21). 28 The undersigned finds the MSJ is procedurally deficient. The MSJ contains no argument 1 or recitation to caselaw. It includes a “Statement of Undisputed Facts” listing five undisputed 2 facts. (Id. at 4). The first two undisputed facts are not statements of fact but instead are questions 3 about possible facts. (Id., questioning why Plaintiff had bleeding around his eyes and how did 4 Plaintiff’s ribs get broken). The three remaining fact are not material as to the issue of whether 5 Defendants used excessive force but address procedural issues. (Id. noting Defendants’ 6 affirmative defenses and whether Plaintiff exhausted his administrative remedies). Further, 7 Plaintiff does not cite to any particular pleading, affidavit, deposition, interrogatory answer, 8 admission, or any other document relied upon to establish the alleged “facts.” (See Id.). 9 Moreover, in addition to not being authenticated, Plaintiff fails to explain how the medical 10 records he attaches as exhibits are relevant. 11 To establish the absence of a genuine factual dispute, Plaintiff must cite “to particular 12 parts of materials in the record, including depositions, documents, electronically stored 13 information, affidavits or declarations, stipulations (including those made for purposes of the 14 motion only), admissions, interrogatory answers, or other materials . . . ” Fed. R. Civ. P. 15 56(c)(1)(A). See also Local Rule 260(a). Even giving the benefit that his alleged facts are 16 material facts, not conceded, Plaintiff’s MSJ is fails to comply with Federal Rule 56(c)(1)(A) and 17 Local Rule 260(a). Litigants who proceed pro se are held to “less stringent standards than formal 18 pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Still, 19 “[p]ro se litigants must follow the same rules of procedure that govern other litigants.” King v. 20 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citations omitted), overruled on other grounds, Lacey v. 21 Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc). Further, as noted, this case is in the early 22 stages of litigation and Defendants have not had an opportunity to engage in merits-based 23 discovery. 24 Accordingly, it is RECOMMENDED: 25 Plaintiff’s motion for partial summary judgment (Doc. No. 123) be DENIED without 26 prejudice as procedurally deficient. 27 NOTICE TO PARTIES 28 These findings and recommendations will be submitted to the United States District Judge 1 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 2 | days after being served with these findings and recommendations, a party may file written 3 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 4 | Findings and Recommendations.” Parties are advised that failure to file objections within the 5 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 6 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 Dated: _ November 2, 2022 ooo. Th. Bareh Hack 9 HELENA M. BARCH-KUCHTA 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28