Davis III v. Gibson et al

Filing 51

FINDINGS and RECOMMENDATIONS Recommending Plaintiff's 50 Motion for Summary Judgment be Denied, signed by Magistrate Judge Stanley A. Boone on 12/27/18. Referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RELMON H. DAVIS, III.,

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Plaintiff,

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v.

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GIBSON, et.al.,

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Defendants.

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Case No.: 1:18-cv-00610-LJO-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT BE DENIED
[ECF No. 50]

Plaintiff Relmon H. Davis, III. is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion for summary judgment, filed December 26,

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2018. Because Plaintiff’s motion is procedurally defective, the Court does not need a response from

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Defendants prior to issuance of the instant Findings and Recommendation.

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I.

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DISCUSSION

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

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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 to

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do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th

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

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Plaintiff moves for summary judgment on his due process claim against Defendants.
Plaintiff’s motion for summary judgment is defective in that Plaintiff fails to cite or reference

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any evidence but simply asserts brief legal conclusions. (ECF No. 50.) Local Rule 260 specifically

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provides that every motion for summary judgment shall be accompanied by a Statement of Undisputed

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Facts that shall “enumerate discretely each of the specific material facts relied upon in support of the

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motion and cite the particular portions of any pleading, affidavit, deposition, interrogatory answer,

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admission, or other document relied upon to establish that fact.” Local Rule 260(a); Fed. R. Civ. P.

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56(c). Plaintiff’s summary judgment motion is nothing more than a recitation that he is entitled to the

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relief set forth in the complaint. The parties bear the burden of supporting their motion and opposition

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with the papers they wish the Court to consider and/or by specifically referencing any other portions of

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the record they wish the Court to consider. Fed. R. Civ. P. 56(c); Carmen v. San Francisco Unified

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School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The Court will not undertake to mine the record

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for triable issues of fact. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 386 (9th Cir. 2010);

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Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010); Carmen v. San Francisco

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Unified School Dist., 237 F.3d at 1031. Thus, Plaintiff, as the moving party, has failed to produce

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

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Accordingly, Plaintiff’s motion for summary judgment must be denied.

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II.

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RECOMMENDATION

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Based on the foregoing, Plaintiff’s motion for summary judgment, filed on December 26,

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2018, should be denied in its entirety.
This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days

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after being served with this Findings and Recommendation, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The parties are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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December 27, 2018
UNITED STATES MAGISTRATE JUDGE

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