Bussiere v. Kokor et al

Filing 72

ORDER Adopting 62 FINDINGS AND RECOMMENDATIONS and Denying 51 Motion for Summary Judgment, without Prejudice, on Procedural Grounds, signed by District Judge Anthony W. Ishii on 7/25/16. Fourteen Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR T. BUSSIERE,
Plaintiff,

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

Case No. 1:13-cv-1565-AWI-SKO (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT, WITHOUT PREJUDICE, ON
PROCEDURAL GROUNDS
(Doc. 62)

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

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filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 27, 2013. The matter was

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referred to a United States Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule

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302. This action is proceeding on Plaintiff’s Fist Amended Complaint (Doc. 12) against

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Defendants W. Kokor, M.D., N. Hashemi, M.D., and A. Tiggs-Brown, P.A., for deliberate

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indifference to Plaintiff’s medical needs in violation of the Eight Amendment. (See Doc. 14.)

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

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Federal Rule of Civil Procedure 56. (Doc. 51.) However, they failed to concurrently serve

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Plaintiff with the requisite notice of the requirements for opposing/responding to their motion

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pursuant to Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d

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952, 960-61 (9th Cir. 1998). Plaintiff nevertheless filed an opposition. (See Docs. 55, 56, 57.)
On June 6, 2016, without engaging in harmless error analysis, the Magistrate Judge issued a
Findings and Recommendations to deny Defendants’ motion for summary judgment without
prejudice to refiling with the requisite notice to Plaintiff, which was served that same date and

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gave fifteen days for the parties to file objections. (Doc. 62.) Despite lapse of more than the

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allowed time, no objections have been filed.

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

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

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

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendations, issued on June 6, 2016 (Doc. 62), is adopted in

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full;
2. Defendants' motion for summary judgment, filed on February 16, 2016 (Doc. 51), is

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denied without prejudice to refiling, within fourteen (14) days of the date of service of

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this order, with proof of notice to Plaintiff of the requirements to adequately

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oppose/respond to a motion for summary judgment as required by Woods v. Carey,

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

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Cir. 1998); and

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3. Within twenty-one (21) days of the date of service of Defendants’ refiled motion,
Plaintiff shall either file a new opposition/response in accordance with Federal Rule of
Civil Procedure 56, or a notice that he desires to stand on the opposition he previously
filed (see Docs. 55, 56, 57).

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IT IS SO ORDERED.
Dated: July 25, 2016
SENIOR DISTRICT JUDGE

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