Puckett v. Vogel et al

Filing 55

FINDINGS and RECOMMENDATIONS Recommending (1) Plaintiff's 51 Motion for Summary Judgment be Denied, Without Prejudice, on Procedural Grounds, and (2) Defendants' Rule 56(D) Motions be Denied as Moot signed by Magistrate Judge Sheila K. Oberto on 5/19/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 6/8/2015. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 DURRELL A. PUCKETT, 10 Plaintiff, 11 v. 12 SGT. RONALD VOGEL, et al., 13 Defendants. 14 Case No. 1:13-cv-00525-AWI-SKO (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING (1) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BE DENIED, WITHOUT PREJUDICE, ON PROCEDURAL GROUNDS, AND (2) DEFENDANTS’ RULE 56(D) MOTIONS BE DENIED AS MOOT (Docs. 51, 52, and 54) 15 _____________________________________/ 16 Plaintiff Durrell A. Puckett, a state prisoner proceeding pro se and in forma pauperis, filed 17 18 this civil rights action pursuant to 42 U.S.C. § 1983 on April 12, 2013. This action for damages is 19 proceeding on Plaintiff’s amended complaint against Defendants Sanchez, Vogel, and Johnson for 20 retaliation in violation of the First Amendment; against Defendants Sanchez, Vogel, Johnson, 1 21 Dean, Bolander, Abadia, Lockhart, Zamora, Sisneroz, Campos, and Callow for excessive force in 22 violation of the Eighth Amendment; and against Defendants Sanchez, Vogel, and Johnson for 23 violation of the Equal Protection Clause of the Fourteenth Amendment. On January 30, 2015, the Court issued a scheduling order which opened discovery, and on 24 25 March 4, 2015, Plaintiff filed a motion for summary judgment. However, the motion did not 26 comply with Local Rule 260(a), which requires that “[e]ach motion for summary judgment or 27 28 1 Identified as Sisneros in the amended complaint. 1 summary adjudication shall be accompanied by a ‘Statement of Undisputed Facts’ that shall 2 enumerate discretely each of the specific material relied upon in support of the motion and cite the 3 particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other 4 document relied upon to establish that fact.”2 Compliance with Local Rule 260(a) is mandatory, 5 and as a result of Plaintiff’s failure to include a Statement of Undisputed Facts with his motion, it 6 is procedurally defective and should be denied, without prejudice, on that ground. In response to Plaintiff’s motion, Defendant Zamora filed a Rule 56(d) motion on March 9, 7 8 2015, and Defendants Sanchez, Vogel, Johnson, Dean, Bolander, Lockhart, Sisneroz, Campos, 9 and Callow filed a Rule 56(d) motion on March 24, 2015. Fed. R. Civ. P. 56(d). Plaintiff did not 10 file a response. In light of the recommendation that Plaintiff’s motion be denied on procedural 11 grounds, the Court recommends Defendants’ Rule 56(d) motions be denied as moot. Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that Plaintiff’s 12 13 motion for summary judgment be DENIED, without prejudice, on procedural grounds and 14 Defendants’ Rule 56(d) motions be DENIED as moot. 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 17 fifteen (15) days after being served with these Findings and Recommendations, the parties may 18 file written objections with the Court. The document should be captioned “Objections to 19 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 20 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 21 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 22 (9th Cir. 1991)). 23 24 IT IS SO ORDERED. Dated: 25 May 19, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 26 27 28 2 Plaintiff listed a “Statement of Uncontroverted Facts” in the table of contents but it was not included with the motion. Also listed but not included was Plaintiff’s declaration. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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