Bradford v. Ogbuehi

Filing 74

ORDER DENYING Plaintiff's Ninth and Tenth Motions for Summary Judgment 69 73 , Without Prejudice, signed by Magistrate Judge Stanley A. Boone on 6/24/2020. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND ALFORD BRADFORD,

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Plaintiff,

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v.
C. OGBUEHI, et al.
Defendants.

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Case No.: 1:17-cv-01128-SAB (PC)
ORDER DENYING PLAINTIFF’S NINTH
AND TENTH MOTIONS FOR SUMMARY
JUDGMENT, WITHOUT PREJUDICE
[ECF Nos. 69, 73]

Plaintiff Raymond Alford Bradford is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. Both parties have consented to Magistrate

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Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (ECF No. 35.)

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Currently before the Court are Plaintiff’s motions for summary judgment, filed June 2, 2020

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and June 23, 2020. The Court deems the motions submitted for review without the need for an

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opposition by Defendants.

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I.

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RELEVANT BACKGROUND

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This action is proceeding on Plaintiff’s claim against Defendants Usher, Rimbach, German,

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Ulit, Spaeth, and Sao for violation of the Eighth Amendment based on Plaintiff’s allegations related to

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Valley Fever. (ECF No. 21 at 3.)

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On February 20, 2020, the Court denied the previous eight motions for summary judgment
filed by Plaintiff. (ECF No. 58.)

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On May 5, 2020, Defendants filed an answer to the complaint. (ECF No. 65.)

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On May 12, 2020, the Court issued the discovery and scheduling order. (ECF No. 64.)
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On June 2, 2020, the Court set this case for a settlement conference before Magistrate Judge
Barbara A. McAuliffe on September 22, 2020, at 9:30 a.m., and stayed the case. (ECF No. 71.)
As previously stated, on June 2, 2020, Plaintiff filed a ninth motion for summary judgment.
(ECF No. 69.)
Then, on June 22, 2020, Plaintiff filed a tenth motion for summary judgment. (ECF No. 73.)

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II.

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DISCUSSION

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Any party may move for summary judgment, and the Court shall grant summary judgment if

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the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v.

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U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed

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or undisputed, must be supported by (1) citing to particular parts of materials in the record, including

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but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials

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cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot

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produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted).

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The Court may consider other materials in the record not cited to by the parties, but it is not required

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to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031

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(9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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Rule 56(d) of the Federal Rules of Civil Procedure provides a procedure by which a party may

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avoid summary judgment when such party has not had sufficient opportunity to discover affirmative

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evidence necessary to oppose the motion. See Garrett v. San Francisco, 818 F.2d 1515, 1518 (9th Cir.

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1987). In particular, Rule 56(d) provides that a court may deny a summary judgment motion and

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permit the opposing party to conduct discovery where it appears that the opposing party, in the

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absence of such discovery, is unable to present facts essential to opposing the motion. Fed. R. Civ. P.

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56(d). A pending discovery motion is sufficient to raise a question as to whether the party opposing

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summary judgment should be permitted additional discovery, even if no request under Rule 56(d) has

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been made. See Garrett, 818 F.2d at 1518.

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“Although [Federal Rule of Civil Procedure 56] allows a motion for summary judgment to be

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filed at the commencement of an action, in many cases the motion will be premature until the

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nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had.”

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Fed. R. Civ. P. 56, Advisory Committee’s Notes (2010 Amendments, Note to Subdivision (b)).

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Indeed, many courts have denied pre-answer and pre-discovery motions for summary judgment as

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premature despite technical compliance with the timing provisions of Rule 56. See Williams v. Yuan

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Chen, No. S-10-1292 CKD P, 2011 WL 4354533, at * 3 (E.D. Cal. Sept. 16, 2011) (denying plaintiff’s

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summary judgment motion as premature where defendant had not yet filed an answer and the court

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had not issued a discovery order); Moore v. Hubbard, No. CIV-S-06-2187 FCD EFB P, 2009 WL

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688897, at *1 (E.D. Cal. Mar. 13, 2009) (recommending that plaintiff’s motion for summary judgment

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be denied as premature where “discovery has not yet begun, defendants have not yet filed an answer

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and the court has yet to issue a discovery and scheduling order”).

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As an initial matter, on June 2, 2020, the Court stayed the case pending the September 22,

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2020 settlement conference. Second, the parties have not conducted in discovery as to the merits of

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Plaintiff’s claims. Third, as with Plaintiff’s eight prior motions for summary judgment, Plaintiff’s

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ninth and tenth motions for summary judgment are defective in that Plaintiff’s undisputed facts are

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simply assertions of brief legal conclusions. (ECF Nos. 69, 73.) Local Rule 260(a), specifically

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requires that “[e]ach motion for summary judgment or summary adjudication shall be accompanied by

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a ‘Statement of Undisputed Facts’ that shall enumerate discretely each of the specific material relied

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upon in support of the motion and cite the particular portions of any pleading, affidavit, deposition,

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interrogatory answer, admission, or other document relied upon to establish that fact.” Although

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Plaintiff sets forth three statements of undisputed facts, the statements are broad legal conclusions, and

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not specific statements of fact. Further, Plaintiff’s statement of undisputed facts fails to cite to

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pleadings, affidavit, deposition, interrogatory, answer, admission, or other document relied upon to

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establish the “facts” he claims are undisputed. Thus, Plaintiff, as the moving party, has failed to

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produce evidence to meet his initial burden of proof, and the burden therefore has not shifted to

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Defendants. Accordingly, Plaintiff’s ninth and tenth motions for summary judgment shall be denied,

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without prejudice. Plaintiff is warned that filing additional premature and repetitive baseless motions,
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needlessly multiplying the proceedings, wasting judicial resources, or otherwise submitting filings in bad

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faith or for the purpose of harassment, may subject him to sanctions. In addition, once a motion is filed

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seeking certain relief, no additional motions should be filed until the original motion is ruled upon by the

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Court, which will take time based upon the volume of cases this Court handles.
III.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s ninth and tenth motions for

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summary judgment, filed on June 2, 2020 and June 22, 2020 (ECF Nos. 69, 73) are DENIED, without
prejudice.

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IT IS SO ORDERED.
Dated:

June 24, 2020
UNITED STATES MAGISTRATE JUDGE

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