Glass v. Woodford et al

Filing 108

ORDER ADOPTING Findings and Recommendations and DENYING Defendants' Motion for Summary Judgment 55 , 100 , 107 , signed by Chief Judge Anthony W. Ishii on 8/13/12: This action is referred back to the Magistrate Judge for further proceedings. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DONALD GLASS,

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CASE NO. 1:09-cv-00098-AWI-BAM PC
Plaintiff,

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v.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

R. FIELDS, et al.,
(ECF Nos. 55, 100, 107)

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Defendants.
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Plaintiff Donald Glass (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 23, 2012, the Magistrate Judge filed a findings and recommendations herein which

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was served on the parties and which contained notice to the parties that any objections to the findings

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and recommendations were to be filed within thirty days. Plaintiff filed an objection on August 9,

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2012. (ECF No. 107.)

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Plaintiff objects to the findings and recommendations on the grounds that his cross motion

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for summary judgment was found by the Magistrate Judge to be untimely, and therefore was not

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addressed as a motion for summary judgment, but was addressed as an objection. Plaintiff argues

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that the Magistrate Judge abused her discretion in denying his motion to amend the scheduling order.

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Plaintiff claims that since he had no way of knowing that the Magistrate Judge would deny his

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motion, he was prevented from filing a motion for summary judgment, and therefore his motion

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should be considered timely.
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To the extent that Plaintiff seeks reconsideration of the order denying his motion to amend

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the scheduling order, which was issued on September 1, 2011, Plaintiff did not file a motion for

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reconsideration, and the motion may not be raised in the objection to the findings and

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recommendations. The Court has previously considered Plaintiff’s motion for reconsideration of the

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Magistrate Judge’s denial of his motion to continue the motion for summary judgment.

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The deadline in this action for filing dispositive motions was July 25, 2011. (ECF No. 34.)

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Although Plaintiff argues that his motion for summary judgment should be considered timely

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because the Magistrate Judge did not decide his motion to amend the scheduling order until after the

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dispositive deadline had passed, Plaintiff did not file a motion to amend the dispositive motion

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deadline or seek leave to file a late motion for summary judgment. The motions brought by Plaintiff

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were to extend the amended pleading date and the discovery deadline.

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Plaintiff filed several motions for an extension of time to file an objection to Defendants’

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motion for summary judgment, however he did not file a motion for leave file a late motion for

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summary judgment.

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2012,approximately seven months after the dispositive motion deadline, was untimely.

Plaintiff’s cross motion for summary judgment, filed February 23,

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings

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and recommendations to be supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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The findings and recommendations, filed May 23, 2012, is adopted in full;

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Defendants’ motion for summary judgment, filed July 25, 2011, is denied; and

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3.

This action is referred back to the Magistrate Judge for further proceedings.

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Dated:
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August 13, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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