Sims v. Veal et al

Filing 108

ORDER signed by District Judge Kimberly J. Mueller on 9/30/2011 ORDERING 104 FINDINGS AND RECOMMENDATIONS are ADOPTED in full; defendant's 90 Motion for Summary Adjudication of plaintiff's Eighth Amendment claim is GRANTED; defendants are granted 30 days to file a pretrial statement as to plaintiff's remaining claims.(Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STANLEY SIMS,
Plaintiff,

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No. CIV S-07-0898 KJM EFB P

Defendants.

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ORDER

vs.
VEAL, et al.,

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 10, 2011, the magistrate judge filed findings and recommendations,

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days from the date the

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findings and recommendations were served. Plaintiff has filed objections to the findings and

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recommendations.

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Plaintiff suggests that summary judgment was premature because he needs to

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conduct further discovery. ECF No. 106 at 4-5. He explains he could not conduct discovery

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earlier because of his mental problems and because he did not know what he was doing. Id.
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This lament is insufficient to delay resolving defendant’s motion at this time. Rule 56(d) of the

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Federal Rules of Civil Procedure permits a court to deny or continue determination of a motion

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for summary judgment “if a nonmovant shows by affidavit or declaration that, for specified

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reasons, it cannot present facts essential to justify its opposition . . . .” In order to justify a

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continuance or denial of summary judgment under Rule 56(d), a party must satisfy the following

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requirements:

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(1) it has set forth in affidavit form the specific facts it hopes to
elicit through further discovery; (2) the facts sought exist; and
(3) the sought after facts are essential to oppose summary
judgment.

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Family Home and Finance Center v. Federal Home Loan Mortgage Corporation, 525 F.3d 822,

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827 (9th Cir. 2008). Plaintiff does not describe the specific facts he hopes to elicit through

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further discovery. His request does not derail the court’s consideration of the findings and

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recommendations at this time.

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Plaintiff does support his objections with a number of documents he did not

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provide to the magistrate judge in connection with the motion for summary judgment. Among

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these documents are copies of medical records showing that in 2004, he received dietary referral

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cards provided for a lactose controlled diet, ECF No. 107 at 11-12, and that when he was given a

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liquid diet sometime in 2005, the dietician noted he should not receive milk. Id. at 16, 21.

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Plaintiff contends these documents show he was telling the truth when he claimed to have a no-

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lactose, no-meat card whereas he previously had identified his diet card only as a no-meat card.

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These additional documents do not undercut the magistrate judge’s findings and

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recommendations, particularly because they show that inmates with lactose controlled and no-

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meat diets “will be EDUCATED by the dietician to select from the regular main kitchen meals.”

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Id. at 21 (emphasis in original). Accordingly, this information suggests that even inmates with

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some dietary restrictions were expected to be able to satisfy their nutritional needs through

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regular meals.
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In sum, the court’s discretionary review of the additional materials plaintiff has

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submitted does not change the conclusions recommended by the magistrate judge in this case.

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The court finds the findings and recommendations to be supported by the record and by the

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proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed August 10, 2011, are adopted in full;

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2. Defendant Halverson’s December 10, 2010 motion for summary adjudication

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of plaintiff’s Eighth Amendment claim against him regarding the confiscation of plaintiff’s diet

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card in May 2005 (ECF No. 90) is granted; and

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3. Defendants are granted thirty days to file a pretrial statement as to plaintiff’s

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remaining claims.

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DATED: September 30, 2011.

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UNITED STATES DISTRICT JUDGE

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