Page v. Hense et al

Filing 44

ORDER ADOPTING 41 Findings and Recommendations In Full; ORDER DENYING 30 Defendants' Motion for Summary Judgment; ORDER GRANTING 27 Plaintiff's Motion for Summary Judgment In Part and Referring Matter Back to the Magistrate Judge to Set For Trial, signed by District Judge Anthony W. Ishii on 02/20/2013. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEITH PAGE,

CASE NO. 1:10-cv-01186-AWI-SKO PC

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Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS IN FULL, DENYING
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT, GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT IN
PART, AND REFERRING MATTER BACK
TO THE MAGISTRATE JUDGE TO SET FOR
TRIAL

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v.
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LYDIA C. HENSE, et al.,
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Defendants.
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(Docs. 27, 30, and 41)
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Plaintiff Keith Page, a former state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on July 1, 2010. This action for damages is

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proceeding against Defendants Ramirez and Lopez for failing to protect Plaintiff while he was

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incarcerated at North Kern State Prison in 2009, in violation of the Eighth Amendment of the United

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States Constitution.

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This action was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rule 302. On January 15, 2013, the Magistrate Judge filed a Findings and

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Recommendations recommending that Defendants’ Motion for Summary Judgment be denied and

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Plaintiff’s Motion for Summary Judgment be granted in part. The parties were given thirty days

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within which to file any objections. Defendants filed an Objection on February 11, 2013, Plaintiff

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filed a Response on February 15, 2013, and the matter has been submitted to the undersigned. Local

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Rule 304(b), (d).

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

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novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and

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

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In their Objection, Defendants argue that the Court should decline to adopt the

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recommendation that Plaintiff’s motion for summary judgment be granted in part, a recommendation

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which is based on matters being admitted pursuant to Federal Rule of Civil Procedure 36(a)(3).

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(Doc. 42, Obj.) Defendants represent that they timely served their responses on June 18, 2012, and

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they contend that they inadvertently overlooked the admissions issue raised by Plaintiff in his motion

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for summary judgment.

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In response, Plaintiff submits a copy of the envelope in which the responses were served and

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it bears a mailing date of July 2, 2012. (Doc. 43, Resp., Ex. A.) Plaintiff contends that the Findings

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and Recommendations are correct and should be adopted.

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The Magistrate Judge correctly articulated the applicable legal standard in the Findings and

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Recommendations. (Doc. 41, F&R, 10:11-11: 19.) Rule 36(a) requires that responses to requests

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for admission be timely served or the matters are deemed admitted, and the rule is self-executing.

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Fed. R. Civ. P. 36(a)(3). Pursuant to the parties’ stipulation to an extension of time and the

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additional three days for mailing provided for in Federal Rule of Civil Procedure Rule 6(d), the

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deadline for Defendants to serve their responses by mail was June 21, 2012. (Obj., Ex. B.)

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Defendants did not serve their responses by mail until July 2, 2012, however, and the matters are

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deemed admitted as a result.

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In conclusion, Plaintiff’s evidence negates Defendants’ contention that they served their

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responses by mail on June 18, 2012, and they are not entitled to relief from the recommendation.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations, filed January 15, 2013, is adopted in full;

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2.

Defendants’ motion for summary judgment, filed on July 30, 2012, is DENIED in its

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entirety;
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Plaintiff’s motion for summary judgment, filed on July 2, 2012, is GRANTED as to
Defendant Ramirez and DENIED as to Defendant Lopez; and
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This matter is referred back to the Magistrate Judge to be set for jury trial.

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IT IS SO ORDERED.

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Dated:
0m8i78

February 20, 2013
SENIOR DISTRICT JUDGE

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