Farlough v. Dawson et al

Filing 16

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's motion for summary judgment 14 be DENIED signed by Magistrate Judge William M. Wunderlich on 4/30/2009. Motion referred to Judge Anthony W. Ishii, Objections to F&R due by 6/4/2009. (Esteves, C)

1 2 3 4 5 6 7 8 9 10 11 12 NICHOLAS DAWSON, et al., 13 Defendants. 14 15 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action 16 pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff's motion for summary 17 judgment. 18 Plaintiff's motion consists of a four page declaration indicating that he has been deprived 19 of access to the law library on certain occasions. This action proceeds on the August 11, 2008, 20 first amended complaint. Defendants have not been served, and no defendant has entered an 21 appearance. 22 The case must be sufficiently advanced in terms of pretrial discovery for the summary 23 judgment target to know what evidence likely can be mustered and be afforded a reasonable 24 opportunity to present such evidence. Portsmouth Square, Inc., v. Shareholders Protective 25 Comm., 770 F.2d 866, 869 (9th Cir. 1985). 26 1 Rule 56 contemplates that the opposing party have a vs. DEXTER S.C. FARLOUGH, Plaintiff, 1: 07 CV 1108 AWI WMW PC FINDINGS AND RECOMMENDATION RE MOTION FOR SUMMARY JUDGMENT (DOC 14) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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sufficient opportunity to discover information essential to its position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Until such time as Defendants have entered an appearance and had the opportunity to conduct discovery, Plaintiff's motion is premature. Once Defendants have filed an answer, a discovery order will be entered, and a deadline for the filing of dispositive motions will be set. 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). Within thirty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time waives all objections to the judge's findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 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: April 30, 2009 mmkd34 /s/ William M. Wunderlich UNITED STATES MAGISTRATE JUDGE

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