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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SIMON THORNTON, 12 13 14 15 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 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. §1983. This action proceeds on Plaintiff’s First 19 Amended Complaint on an Eighth Amendment excessive force claim against Defendant 20 Grissom and an Eighth Amendment failure to protect claim against Defendant Cruz. The 21 United States Marshal was directed to serve these Defendants on May 30, 2017. There 22 have been no appearances to date by either Defendant. 23 Pending now is Plaintiff’s second motion for summary judgment. (ECF No. 44.) 24 Plaintiff’s first motion for summary judgment was denied as premature on June 30, 2017. 25 (See ECF Nos. 36, 46.) Plaintiff’s renewed motion again seeks judgment on the claims 26 asserted in this case. Since Defendants have yet to appear in this action, Plaintiff’s 27 motion for summary judgment is again premature. Additionally, the cursory summary 28 judgment motion fails to comply with the procedural requirements of Federal Rule of Civil 1 1 Procedure 56 and Eastern District Local Rule 260(a). The undersigned will therefore 2 recommend that it be denied. 3 4 5 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 6 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 7 Within fourteen (14) days after being served with the findings and recommendations, the 8 parties may file written objections with the Court. The document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” A party may 10 respond to another party’s objections by filing a response within fourteen (14) days after 11 being served with a copy of that party’s objections. The parties are advised that failure to 12 file objections within the specified time may result in the waiver of rights on appeal. 13 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 14 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 IT IS SO ORDERED. Dated: July 20, 2017 /s/ 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 Michael J. Seng 2

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