(PC) Gray v. Khoo ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANA GRAY, ) Case No.: 1:20-cv-01047-DAD-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) REGARDING PLAINTIFF’S MOTION TO REACTIVE PRIOR MOTION FOR SUMMARY 14 A. KHOO, et al., ) JUDGMENT ) 15 Defendants. ) (ECF No. 97) ) 16 ) 17 Plaintiff Dana Gray is proceeding pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion to reactivate her motion for summary judgment, 20 filed June 15, 2022. 21 I. 22 RELEVANT BACKGROUND 23 This action is proceeding against Defendants G. Song and R. Mitchell for deliberate indifference in violation of the Eighth Amendment. 24 Defendants filed an answer to the complaint on April 26, 2021. 25 On September 1, 2021, the Court issued the discovery and scheduling order. 26 On March 16, 2022, Plaintiff filed a motion for summary judgment. On March 29, 2022, the Court 27 issued Findings and Recommendations recommending that Plaintiff’s motion for summary judgment be 28 1 denied as procedurally deficient. The Findings and Recommendations were adopted in full on April 25, 2 2022. 3 Plaintiff now seeks to reactivate her prior motion for summary judgment to include a separate 4 “Statement of Undisputed Facts.” Defendants filed an opposition to Plaintiff’s motion on July 5, 2022. 5 Although the time for filing a reply has not yet expired, the Court finds Plaintiff’s motion suitable for review without the filing of a reply. 6 On June 30, 2022, Plaintiff filed a motion which seeks clarification as to the status of her prior 7 motion for summary judgment and requests an extension of thirty days to file a dispositive motion. 8 II. 9 DISCUSSION 10 Defendants do not oppose Plaintiff’s motions insofar as she seeks to re-file a motion for summary 11 judgment in accordance with the Court’s original scheduling order and March 29, 2022, Findings and 12 Recommendation. Defendants do, however, object to the proposed renewed motion for summary 13 judgment on the ground that Plaintiff’s statement of undisputed fact is procedurally and substantively 14 deficient. The Court agrees with Defendants. 15 As stated in the March 29, 2022, Findings and Recommendations: 16 Plaintiff did not comply with Local Rule 260(a) which requires the party moving for summary 17 judgment to provide a “Statement of Undisputed Facts” that cites to the evidentiary basis for each undisputed fact. Federal Rule of Civil Procedure 56(c) similarly mandates that all 18 undisputed facts be based on “materials in the record” such as affidavits or depositions. Although Plaintiff has attached exhibits and her own declaration to the motion for summary 19 judgment, she has not included a separate statement of undisputed facts as required by Local 20 Rule 260(a). 21 (ECF No. 79 at 2.) Plaintiff’s renewed “Statement of Undisputed Facts” refers to “seven (7) sets of 22 undisputed fact.” (ECF No. 97 at 7-8.) Each subset is devoid of any assertion of fact and simply 23 refers to citations of documents that Plaintiff obtained during discovery from Defendants, i.e., 24 Plaintiff’s medical records and health care appeals spanning the course of several years. (Id. at 2-11.) 25 Thus, Plaintiff has not complied with Local Rule 260(a). See Brownlee v. Porter, No. CIV S-06-2680 26 LKK, 2011 WL 4543679, at *1 (E.D. Cal. Sept. 28, 2011) (finding motion for summary judgment did 27 not satisfy Local Rule 260(a) when pro se plaintiff’s lengthy statement of undisputed facts solely 28 consisted of requests for admission propounded against defendant and excerpts of plaintiff’s medical 1 ||records). Indeed, Defendants cannot adequately respond to Plaintiff's proposed statement of 2 || undisputed facts as it currently stands because they would be required to admit or deny evidentiary 3 || documents without knowledge of Plaintiffs position. Thus, Defendants would be required to 4 || speculate as to the purpose of the evidentiary documents and what is considered material or in dispute 5 || Although Plaintiffs failure to comply with Local Rule 260(a), alone, is not sufficient to deny 6 || summary judgment, Plaintiff’s statement of undisputed facts must accompany her motion for 7 ||summary judgment. See Local Rule 260(a). Accordingly, Plaintiff should be provided the 8 || opportunity to file a revised and proper statement of undisputed facts and renewed and complete 9 || motion for summary judgment.! 10 Il. 11 RECOMMENDATION 12 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiffs motion to reactivat 13 || the prior motion for summary judgment be DENIED, without prejudice, to refiling a new and 14 || complete motion for summary judgment with supporting statement of undisputed facts pursuant to 15 || Local Rule 260(a). 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)(). Within fourteen (14) days 18 || after being served with this Findings and Recommendation, the parties may file written objections 19 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 20 || Recommendation.” The parties are advised that failure to file objections within the specified time mz 21 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 22 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 IT IS SO ORDERED. A (re 25 |/Dated: _ July 6, 2022 OF 26 UNITED STATES MAGISTRATE JUDGE 27 28 ||! By way of separate order, the Court will grant Plaintiff's motion to extend the time to file a dispositive motion.