Martinez v. Whitman et al

Filing 46

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 2/4/2010 recommending that 43 MOTION for SUMMARY JUDGMENT filed by Jess Rico Martinez be DENIED. Objections to F&R due by 3/1/2010. (Lundstrom, T)

1 2 3 4 5 6 7 8 9 10 11 BILL WHITMAN, et al., 12 Defendants. 13 14 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action 15 pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff's motion for summary 16 judgment. 17 The case must be sufficiently advanced in terms of pretrial discovery for the summary 18 judgment target to know what evidence likely can be mustered and be afforded a reasonable 19 opportunity to present such evidence. Portsmouth Square, Inc., v. Shareholders Protective 20 Comm., 770 F.2d 866, 869 (9th Cir. 1985). 21 sufficient opportunity to discover information essential to its position. See Anderson v. Liberty 22 Lobby, Inc., 477 U.S. 242, 250 (1986). Here, Defendants have yet to be served. A 23 recommendation of dismissal has been entered, based upon Plaintiff's failure to prosecute, and to 24 provide information for service of process. A motion for summary judgment by Plaintiff at this 25 state in the litigation is therefore premature. 26 1 Rule 56 contemplates that the opposing party have a vs. JESS RICO MARTINEZ, Plaintiff, 1: 06 CV 01074 LJO YNP SMS (PC) FINDINGS AND RECOMMENDATIONS RE MOTION FOR SUMMARY JUDGMENT (DOC 43) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff's motion for summary judgment be denied. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within twenty days after being served with these findings and recommendations, Plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: icido3 February 4, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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