(PC) Quintero v. Lemon ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL QUINTERO, No. 1:23-cv-01233-ADA-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF 13 v. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 14 TRISTAIN LEMON, et al. (ECF No. 16) 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 On November 27, 2023, Plaintiff filed a motion for summary judgment. (ECF No. 16.) 20 Plaintiff’s motion must be denied. 21 “The court shall grant summary judgment if the movant shows that there is no genuine 22 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 23 Civ. P. 56(a). A party moving for summary judgment must include a “Statement of Undisputed 24 Facts.” Local Rule 260(a). Furthermore, this Court's local rule requires each motion of summary 25 judgment to include “a ‘Statement of Undisputed Facts’ that shall enumerate discretely each of 26 the specific material facts relied upon in support of the motion and cite the particular points of 27 any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied 28 upon to establish that fact.” To establish the absence of a genuine factual dispute, Plaintiff must 1 | cite “to particular parts of materials in the record, including depositions, documents, 2 | electronically stored information, affidavits or declarations, stipulations (including those made for 3 | purposes of the motion only), admissions, interrogatory answers, or other materials ...” Fed. R. 4 | Civ. P. 56(c)(1)(A); see also Local Rule 260(a). 5 As an initial matter, on October 16, 2023, Findings and Recommendations were issued 6 | recommending dismissal of the action for failure to state a cognizable claim for relief. (ECF No. 7 | 14.) Plaintiff filed objections to the Findings and Recommendations on October 26, 2023, which 8 || is pending review by the District Judge. (ECF No. 15.) Accordingly, Plaintiff has not and cannot 9 | show that he is entitled to summary judgment on the merits of his alleged claims. 10 Further, Plaintiff's motion fails to comport with Fed. R. Civ. P. 56(a) and Local Rule 11 |} 260(a). Plaintiffs motion is procedurally deficient because it neither contains a statement of 12 | undisputed facts, nor cites to any evidence to establish a fact. As a result, Plaintiff's motion is 13 || procedurally deficient under Fed. R. Civ. P. 56 and Local Rule 260(a). 14 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion for 15 || summary judgment be DENIED in its entirety. 16 This Findings and Recommendation will be submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 18 | days after being served with this Findings and Recommendation, the parties may file written 19 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 20 | Findings and Recommendation.” The parties are advised that failure to file objections within the 21 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 22 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 IT IS SO ORDERED. OF. nf ee 25 | Dated: _ November 28, 2023 UNITED STATES MAGISTRATE JUDGE 27 28