Thornton v. Grissom et al

Filing 36

ORDER DENYING 35 Motion for Jury Trial; FINDINGS and RECOMMENDATIONS recommending that 34 Plaintiff's Motion for Summary Judgment be DENIED Without Prejudice re 19 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Michael J. Seng on 5/5/2017. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SIMON THORNTON,

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Plaintiff,
v.
D. GRISSOM, et al.,
Defendant.

1:16-cv-00498-AWI-MJS (PC)
ORDER DENYING MOTION FOR JURY
TRIAL; AND
FINDINGS AND RECOMMENDATION TO
DENY PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
(ECF Nos. 34-35)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. §1983.

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On October 4, 2016, Plaintiff’s First Amended Complaint (ECF No. 9) was

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screened and found to state a cognizable Eighth Amendment excessive force claim

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against Defendant Grissom and an Eighth Amendment failure to protect claim against

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Defendant Cruz. (ECF No. 18.) However, the Court concluded that all other claims and

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Defendants were subject to dismissal. Plaintiff agreed to proceed on that pleading as

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screened, and Findings and Recommendations related to the screening order are now

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pending before the district judge. (ECF No. 31.)

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Plaintiff has now filed a motion for summary judgment and a motion for jury trial.
Since service has not yet been initiated on the Defendants and none have yet appeared
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in this action, Plaintiff’s motion for summary judgment is premature. The cursory

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summary judgment motion also fails to comply with the procedural requirements of

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Federal Rule of Civil Procedure 56 and Eastern District Local Rule 260(a). The

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undersigned will therefore recommend that it be denied.

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In addition, Plaintiff’s motion for a jury trial is moot since he has already requested

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a jury trial in the operative pleading. See Sec. Am. Compl. (ECF No. 19) at 9; Fed. R.

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Civ. P. 38(b).

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for a jury trial (ECF
No. 35) is DENIED as moot; and
IT IS HEREBY RECOMMENDED that Plaintiff’s motion for summary judgment
(ECF No. 34) be DENIED without prejudice.
The findings and recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendations, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” A party may

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respond to another party’s objections by filing a response within fourteen (14) days after

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being served with a copy of that party’s objections. The parties are advised that failure to

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

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 5, 2017

/s/

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UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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