Bussiere v. Kokor et al

Filing 62

FINDINGS and RECOMMENDATIONS that Defendants' 51 Motion for Summary Judgment be Denied, Without Prejudice, on Procedural Grounds; Fifteen Day Objection Deadline signed by Magistrate Judge Sheila K. Oberto on 6/6/2016. Referred to Judge Anthony W. Ishii. Objections to F&R due by 6/24/2016. (Sant Agata, S)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10

ARTHUR T. BUSSIERE,
Plaintiff,

11
12
13
14

v.
Dr, W, KOKOR, et al.,
Defendants.

Case No. 1:13-cv-01565-AWI-SKO (PC)
FINDINGS AND RECOMMENDATION THAT
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT BE DENIED, WITHOUT
PREJUDICE, ON PROCEDURAL GROUNDS
(Doc. 51)
FIFTEEN DAY OBJECTION DEADLINE

15
16

Plaintiff, Arthur T. Bussiere, a state prisoner proceeding pro se and in forma pauperis,

17

filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 27, 2013. This action is

18

proceeding on Plaintiff’s Fist Amended Complaint (Doc. 12) against Defendants W. Kokor,

19

M.D., N. Hashemi, M.D., and A. Tiggs-Brown, P.A., for deliberate indifference to Plaintiff’s

20

medical needs in violation of the Eight Amendment. (See Doc. 14.)

21

On February 16, 2016, Defendants filed a motion for summary judgment pursuant to

22

Federal Rule of Civil Procedure 56. (Doc. 51.) However, Defendants did not concurrently serve

23

Plaintiff with the requisite notice of the requirements for opposing their motion. Woods v. Carey,

24

684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998).

25

Plaintiff nevertheless filed an opposition. (Doc. 55.) Without engaging in harmless error

26

analysis, this Court finds that, had Plaintiff had been informed of the requirements to oppose a

27

motion under Rule 56, he may have requested consideration of Defendants’ motion be postponed

28

under subsection (d), pending ruling on discovery motions he previously filed and completion of

1

1

discovery. (See Docs. 37, 39, 44.)1 Since Plaintiff is an inmate proceeding pro se, he must be

2

given proper notice of what is required as well as opportunity to present an adequate opposition to

3

Defendants’ motion for summary judgment.

4

Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that

5

Defendants’ motion for summary judgment, filed on February 16, 2016, (Doc. 51), be DENIED,

6

without prejudice to refiling2 with concurrent requisite noticed to Plaintiff.3

7

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

8

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

9

fifteen (15) days after being served with these Findings and Recommendations, the parties may

10

file written objections with the Court. The document should be captioned “Objections to

11

Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

12

objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

13

Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

14

(9th Cir. 1991)).

15
16
17

IT IS SO ORDERED.
Dated:

June 6, 2016

/s/

Sheila K. Oberto

.

UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24

1

25

2

26
27
28

These motions will be addressed via separate orders.
Though both the discovery and dispositive motion deadlines have passed (see Doc. 26), they
will be extended via an amended discovery and scheduling order subsequent to consideration of
these findings and recommendations by the District Judge.
3

Though both the discovery and dispositive motion deadlines have passed (see Doc. 26), they will be
extended via an amended discovery and scheduling order subsequent to consideration of these findings
and recommendations by the District Judge.

2