Thornton v. Grissom et al

Filing 47

FINDINGS and RECOMMENDATIONS to Deny Plaintiff's Second 44 Motion for Summary Judgment, signed by Magistrate Judge Michael J. Seng on 7/20/17. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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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)
FINDINGS AND RECOMMENDATION TO
DENY PLAINTIFF’S SECOND MOTION
FOR SUMMARY JUDGMENT
(ECF No. 44)
FOURTEEN-DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. §1983. This action proceeds on Plaintiff’s First

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Amended Complaint on an Eighth Amendment excessive force claim against Defendant

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Grissom and an Eighth Amendment failure to protect claim against Defendant Cruz. The

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United States Marshal was directed to serve these Defendants on May 30, 2017. There

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have been no appearances to date by either Defendant.

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Pending now is Plaintiff’s second motion for summary judgment. (ECF No. 44.)

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Plaintiff’s first motion for summary judgment was denied as premature on June 30, 2017.

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(See ECF Nos. 36, 46.) Plaintiff’s renewed motion again seeks judgment on the claims

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asserted in this case. Since Defendants have yet to appear in this action, Plaintiff’s

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motion for summary judgment is again premature. Additionally, the cursory summary

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judgment motion fails to comply with the procedural requirements of Federal Rule of Civil
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Procedure 56 and Eastern District Local Rule 260(a). The undersigned will therefore

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recommend that it be denied.

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Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s June 26, 2017,
motion for summary judgment (ECF No. 44) 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:

July 20, 2017

/s/

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UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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