Crew v. Commissioner of Department of Corrections and Rehabilitation

Filing 54

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, Recommending Denial Without Prejudice of Defendant's Motion for Summary Judgment and Denial of Plaintiff's Related Motions in Opposition 53 , signed by Chief Judge Lawrence J. O'Neill on 4/27/2018: This action is referred back to the assigned Magistrate Judge for further proceedings consistent with this order. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DAVID CREW,

12
13
14
15
16

Case No. 1:16-cv-00590-LJO-BAM (PC)
Plaintiff,

v.
DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et al.,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS RECOMMENDING
DENIAL WITHOUT PREJUDICE OF
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENIAL OF
PLAINTIFF’S RELATED MOTIONS IN
OPPOSITION

Defendants.
(ECF No. 53)

17
18
19
20

Plaintiff David Crew (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
From June 2017 through February 2018, Plaintiff filed a motion to file an emergency

21

amended complaint, as well as a series of motions in support. (ECF Nos. 30, 39, 45.) In addition,

22

the parties filed various motions relating to discovery disputes and other matters. (ECF Nos. 38,

23

40, 41, 42, 43, 49, 50.)

24
25
26

On September 11, 2017, Defendant Patel filed a motion for summary judgment on the
ground that Plaintiff failed to exhaust available administrative remedies. (ECF No. 44.)
On September 29, 2017, Plaintiff filed a motion to file a factual dispute of Defendant’s

27

summary judgment motion, a motion to file a criminal complaint, a motion for emergency trial by

28

jury, and a motion to dismiss the summary judgment motion to exhaust. (ECF No. 47.) It
1

1

appeared that Plaintiff intended this motion to be an opposition to Defendant’s motion for

2

summary judgment. Defendant Patel filed a response on October 27, 2017. (ECF No. 48.)
On March 29, 2018 the Court issued an order granting Plaintiff’s motions regarding the

3
4

filing of a third amended complaint, and denying, without prejudice to re-filing, the other pending

5

motions related to discovery. (ECF No. 52.) The Court also vacated the discovery and

6

scheduling order issued on June 13, 2017. Plaintiff’s third amended complaint is currently due on

7

or before May 1, 2018. (Id.)

8
9

On April 3, 2018, the Magistrate Judge issued findings and recommendations
recommending that Defendant’s motion for summary judgment be denied without prejudice to re-

10

filing and Plaintiff’s related motions filed in opposition be denied. (ECF No. 53.) The findings

11

and recommendations were served on the parties and contained notice that any objections were to

12

be filed within fourteen (14) days after service. (Id. at 3–4.) No objections have been filed, and

13

the deadline in which to do so has expired.

14

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

15

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

16

findings and recommendations to be supported by the record and by proper analysis.

17

Accordingly, IT IS HEREBY ORDERED that:

18

1. The findings and recommendations issued on April 3, 2018, (ECF No. 53), are

19

adopted in full;
2. Defendant’s motion for summary judgment, (ECF No. 44), is denied, without

20
21

prejudice to re-filing;

22

3. Plaintiff’s motion to file factual dispute of summary judgment, motion to file criminal

23

complaint, motion for emergency trial by jury, motion to dismiss summary judgment,

24

and motion to exhaust, (ECF No. 47), is denied; and

25

///

26

///

27

///

28

///
2

1

4. This action is referred back to the assigned Magistrate Judge for further proceedings

2

consistent with this order.

3
4
5

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

April 27, 2018

UNITED STATES CHIEF DISTRICT JUDGE
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3