Puckett v. Corcoran Prison - CDCR, et al.

Filing 34

FINDINGS and RECOMMENDATIONS to Deny Plaintiff's Motion for Summary Judgment, Without Prejudice to Re-Filing Once Discovery Has Been Completed, Pursuant to Rule 56(d) 27 OBJECTIONS DUE WITHIN FIFTEEN DAYS, signed by Magistrate Judge Gerald B. Cohn on 12/17/12. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DURRELL ANTHONY PUCKETT,

CASE NO. 1:11-cv-01565-LJO-GBC (PC)

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Plaintiff,
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v.
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CORCORAN PRISON - CDCR, et al.,
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FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT, WITHOUT
PREJUDICE TO RE-FILING ONCE
DISCOVERY HAS BEEN COMPLETED,
PURSUANT TO RULE 56(d)

Defendants.
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Doc. 27
/ OBJECTIONS DUE WITHIN FIFTEEN DAYS

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Findings and Recommendations

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I. Procedural Background

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On June 14, 2011, Plaintiff Durrell Anthony Puckett (“Plaintiff”), a state prisoner proceeding

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pro se, filed this civil rights action in California Superior Court, County of Kings, pursuant to 42

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U.S.C. § 1983. Doc. 1. On September 13, 2011, Defendants removed this action to Federal Court.

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Id. On May 15, 2012, the District Judge declined to adopt in part, findings and recommendations,

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and ordered this action to proceed on the cognizable federal law claims of First Amendment

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retaliation and denial of access to courts by Defendant Keener; Eighth Amendment excessive force

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by Defendants Keener, Damien, Manquero, Johnson, Gonzales, and Guajardo; Eighth Amendment

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deliberate indifference to serious medical need by Defendant Lewis; and the state law claim of

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intentional infliction of emotional distress by Defendant Keener. Doc. 24.

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On April 16, 2012, the Court issued a discovery and scheduling order, setting a discovery

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deadline of December 16, 2012, and a dispositive motion deadline of February 25, 2013. Doc. 16.
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On July 23, 2012, Plaintiff filed a motion for summary judgment and exhibits in support of his

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motion for summary judgment. Doc. 27, 28. On August 10, 2012, Defendants filed an opposition

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to Plaintiff’s motion for summary judgment, stating they have not had the opportunity to depose

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Plaintiff, and plan to depose him in November or December 2012 and file a motion for summary

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judgment in February 2013. Doc. 29. Plaintiff did not file a reply.

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II. Rule 56(d)

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

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

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Civ. P. 56(a). In Defendants’ opposition, Defendants state that Plaintiff’s deposition is necessary in

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order to oppose his motion for summary judgment. Doc. 29. Rule 56(d) of the Federal Rules of Civil

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Procedure provides a procedure by which a party may avoid summary judgment when such party has

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not had sufficient opportunity to discover affirmative evidence necessary to oppose the motion. See

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Garrett v. San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). In particular, Rule 56(d) provides

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that a court may deny a summary judgment motion and permit the opposing party to conduct

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discovery where it appears that the opposing party, in the absence of such discovery, is unable to

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present facts essential to opposing the motion. Fed. R. Civ. P. 56(d). Therefore, the undersigned

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recommends to deny Plaintiff’s motion for summary judgment, without prejudice to re-filing once

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all discovery has been completed.

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III. Conclusion and Recommendation

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Accordingly, pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, it is HEREBY

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RECOMMENDED that Plaintiff’s motion for summary judgment be DENIED, without prejudice

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to re-filing once all discovery has been completed.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fifteen (15) days

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after being served with these Findings and Recommendations, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” A party may respond to another party’s objections by filing a response within

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fifteen (15) days after being served with a copy of that party’s objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
7j8cce

December 17, 2012
UNITED STATES MAGISTRATE JUDGE

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