Jefferson v. Flohr et al

Filing 69

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/7/2012, ORDERING that the 64 findings and recommendations are VACATED; and defendant Swanson's 60 motion for summary judgment is DENIED without prejudi ce; and RECOMMENDING that the 42 order granting defendant Flohr's motion for summary judgment be vacated; defendant Flohr's 26 motion for summary judgment be denied without prejudice; within 14 days of any order adopting these find ings and recommendations, defendants be allowed to file and serve a single motion for summary judgment that includes the notice required by Woods, and that thereafter, plaintiff must file and serve an opposition within 30 days, and defendants may thereafter file a reply within 14 days. Referred to Judge William B. Shubb; Objections due within 14 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DON L. JEFFERSON,
Plaintiff,

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vs.

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No. 2:08-cv-1747 WBS EFB P

L. FLOHR, et al.,

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ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C.

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§ 1983. On September 28, 2010, the district judge granted defendant Flohr’s motion for summary

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judgment and on July 12, 2012, the undersigned recommended that defendant Swanson’s motion

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for summary judgment be granted. Dckt. Nos. 38, 64. On August 3, 2012, however, the

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undersigned granted defendant Swanson’s request for supplemental briefing in light of the recent

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Ninth Circuit decision requiring that all prisoners proceeding pro se be provided contemporaneous

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notice of certain requirements for opposing a motion for summary judgment. Woods v. Carey, 684

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F.3d 934 (9th Cir. 2012). The undersigned noted that neither defendant Flohr’s nor defendant

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Swanson’s motion included the requisite notice and ordered plaintiff to inform the court if he wanted

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defendants to re-serve their motions with the requisite notice, and to have the opportunity to file a

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new opposition to either or both of the motions. Dckt. No. 66. On August 14, 2012, plaintiff
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requested that the motions for summary judgment be re-opened to allow him the opportunity to file

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new oppositions to both motions. Dckt. No. 68.

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Accordingly, the undersigned will recommend that the September 28, 2010 order granting

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defendant Flohr’s February 5, 2010 motion for summary judgment be vacated, and that the motion

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be denied without prejudice instead. The undersigned will also vacate the July 12, 2012 findings

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and recommendations to grant defendant Swanson’s November 8, 2011 motion for summary

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judgment, and instead, will deny that motion without prejudice. Additionally, the undersigned will

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recommend that defendants Flohr and Swanson be permitted to file a single motion for summary

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judgment, along with the notice to plaintiff required by Woods.1

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Accordingly, IT IS HEREBY ORDERED that:

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1. The July 12, 2012 findings and recommendations (Dckt. No. 64) are vacated; and

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2. Defendant Swanson’s motion for summary judgment (Dckt. No. 60) is denied without

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prejudice.

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Further, IT IS HEREBY RECOMMENDED that:

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1. The September 28, 2010 order granting defendant Flohr’s motion for summary judgment

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(Dckt. No. 42) be vacated;
2. Defendant Flohr’s motion for summary judgment (Dckt. No. 26) be denied without
prejudice; and

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3. Within fourteen days of any order adopting these findings and recommendations,

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defendants be allowed to file and serve a single motion for summary judgment that includes the

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notice to plaintiff required by Woods, and that thereafter, plaintiff must file and serve an opposition

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Defendants Flohr and Swanson are represented by the same counsel and appear to have
filed separate motions for summary judgment because Swanson had not yet appeared in this action
at the time Flohr moved for summary judgment. See Dckt. Nos. 26, 52. The court notes that
Swanson’s motion for summary judgment relied, in part, on the order granting defendant Flohr’s
motion for summary judgment, which the undersigned now recommends be vacated. In light of this
background, the undersigned finds that an amended motion for summary judgment, filed on behalf
of both defendants, is appropriate.
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within thirty days, and defendants may thereafter file a reply within fourteen days.

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These findings and recommendations are 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 days after

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being served with these findings and recommendations, any party may file written objections with

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455

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(9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 7, 2012.

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