Gonzalez v. Cate et al

Filing 45

FINDINGS and RECOMMENDATIONS re 31 Plaintiff's Motion for Summary Judgment, signed by Magistrate Judge Gary S. Austin on 7/11/12. Referred to Judge O'Neill; Objections due in twenty days. (Verduzco, M)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT FOR THE

8

EASTERN DISTRICT OF CALIFORNIA

9
10
11
12
13
14
15

ZACARIAS GONZALEZ,
)
)
Plaintiff,
)
)
v.
)
)
CAPT. GUINN,
)
)
Defendant.
)
____________________________________)

1:09-cv-02149 LJO GSA PC
FINDINGS AND
RECOMMENDATIONS RE
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
(ECF No. 31)
OBJECTIONS DUE IN TWENTY
DAYS

16
17
18
Plaintiff is a state prisoner proceeding pro se in this civil rights action. This proceeding
19
was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Pending before
20
the Court is Plaintiff’s motion for summary judgment.
21
This is a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff, a state prisoner,
22
brings this action against Defendant Captain Guinn for failing to protect Plaintiff from an assault
23
by another inmate. Plaintiff has filed a document titled as ‘Plaintiff’s Response to Defendant’s
24
Request for Interrogatories and Motion for Summary Judgment.” Plaintiff seeks summary
25
judgment in his favor on the following grounds: “the defendant has clearly violated the order of
26
this court to cooperate in discovery, blatantly admitted wrong-doing by failure to adhere to
27
federal rules of civil procedures, and has brazenly done nothing but try to bring their seditious
28

1

conspiracy to fruition, denying fair play and justice their due day in court.” Attached to

2

Plaintiff’s motion are copies of discovery requests sent to Defendant by Plaintiff and discovery

3

requests sent by Defendant to Plaintiff.

4

Summary judgment is appropriate when it is demonstrated that there exists no genuine

5

issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.

6

Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party

7
8
9
10

[a]lways bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,” which it
believes demonstrate the absence of a genuine issue of material
fact.

11
12
13

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
With regard to Plaintiff’s motion for summary judgment, as the party with the burden of

14

persuasion at trial, Plaintiff must establish “beyond controversy every essential element of its”

15

his affirmative claims. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003)

16

(quoting W. Schwarzer, California Practice Guide: Federal Civil Procedure Before Trial §

17

14:124-127 (2001)). The moving party’s evidence is judged by the same standard of proof

18

applicable at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

19

Plaintiff makes no argument that addresses the above standard. Plaintiff makes no

20

reference to the allegations in the complaint, and fails to refer the Court to any evidence that is

21

the basis of his motion. Plaintiff, as the moving party, is required to establish every element of

22

his claim, showing that there is no disputed issues of fact. Plaintiff’s motion consists of

23

generalized argument and complaints about the conduct of discovery.

24

Further, Plaintiff has failed to refer to any specific undisputed facts, and has failed to

25

submit a separate statement of undisputed facts. Such a statement “shall enumerate discretely

26

each of the specific material facts relied upon in support of the motion and cite the particular

27
28

2

1

portions of any pleading, affidavit, deposition, interrogatory, answer, admission or other

2

document relied upon to establish that fact.” Local Rule 260(a).

3

The Court finds that Plaintiff has failed to meet his burden on summary judgment.

4

Plaintiff may not simply submit discovery and request judgment in his favor. Plaintiff must

5

inform the Court of the basis of his motion, and point the Court to specific evidence that supports

6

his arguments. Plaintiff has failed to do so here.

7
8

Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for summary
judgment be denied.

9

These findings and recommendations are submitted to the United States District Judge

10

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty

11

days after being served with these findings and recommendations, any party may file written

12

objections with the court and serve a copy on all parties. Such a document should be captioned

13

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

14

shall be served and filed within ten days after service of the objections. The parties are advised

15

that failure to file objections within the specified time waives all objections to the judge’s

16

findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file

17

objections within the specified time may waive the right to appeal the District Court’s order.

18

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

19
20
21
22
23

IT IS SO ORDERED.

24

Dated:
6i0kij

July 11, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

25
26
27
28

3