(PC) Hammler v. Clark et al
Filing
50
FINDINGS and RECOMMENDATIONS Recommending Plaintiff's 49 Motion for Summary Judgment be Denied as Premature and Procedurally Defective signed by Magistrate Judge Stanley A. Boone on 9/23/2019. Referred to Judge Anthony W. Ishii. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
ALLEN HAMMLER,
12
13
14
15
Plaintiff,
v.
CLARK, et.al.,
Defendants.
16
17
18
19
20
21
22
23
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: 1:19-cv-00373-AWI-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT BE DENIED AS
PREMATURE AND PROCEDURALLY
DEFECTIVE
[ECF No. 49]
Plaintiff Allen Hammler is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
This action proceeds against Defendants Gamboa, Peterson, Garza, Saucedo, Uhlik and Clark
for violation of the First Amendment.
Currently pending before the Court is Plaintiff’s motion for summary judgment, filed
September 20, 2019
24
As an initial matter, Plaintiff’s motion is premature, as discovery has not yet begun,
25
Defendants have not yet filed an answer and the Court has yet to issue a discovery and scheduling
26
order. Thus, Defendants have not been given the opportunity to discover any facts or information
27
necessary in drafting an opposition. In addition, Plaintiff’s motion did not comply with Local Rule
28
260(a), which requires that “[e]ach motion for summary judgment or summary adjudication shall be
1
1
accompanied by a ‘Statement of Undisputed Facts’ that shall enumerate discretely each of the specific
2
material relied upon in support of the motion and cite the particular portions of any pleading, affidavit,
3
deposition, interrogatory answer, admission, or other document relied upon to establish that fact.”
4
Compliance with Local Rule 260(a) is mandatory, and as a result of Plaintiff’s failure to include a
5
Statement of Undisputed Facts with his motion, it is procedurally defective and should be denied,
6
without prejudice, on that ground. Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s
7
motion for summary judgment be DENIED, without prejudice.
This Findings and Recommendation will be submitted to the United States District Judge
8
9
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days
10
after being served with this Findings and Recommendation, the parties may file written objections
11
with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
12
Recommendation.” The parties are advised that failure to file objections within the specified time may
13
result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)
14
(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
15
16
IT IS SO ORDERED.
17
Dated:
18
September 23, 2019
UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?