Billingsley v. Solano County Jail Medical Staff

Filing 34

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 06/03/11 recommending that defendants' 02/07/11 motion for summary judgment be denied as untimely. The pretrial conference be set for 09/07/11 at 10:00 a.m. before Di strict Judge Kimberly J. Mueller in courtroom 3 with plaintiff appearing telephonically. Trial of this case be set to commence 11/07/11 at 10:00 a.m. before District Judge Kimberly J. Mueller in courtroom 3. MOTION for SUMMARY JUDGMENT 29 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL BILLINGSLEY,

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Plaintiff,

No. CIV S-08-3048 KJM GGH (TEMP) P

vs.
KADAVARI, et al.,

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Defendants.

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FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is defendants’ motion for summary judgment.

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The governing scheduling order set the deadline for pretrial motions, except

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motions to compel discovery, at September 24, 2010. See Order (Docket No. 19). Neither side

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filed any pretrial motions before that deadline. Defendants filed the instant motion for summary

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judgment on February 7, 2011, approximately four-and-a-half months too late. Defendants have

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not filed a motion for leave to file a dispositive motion beyond the deadline, nor do they attempt

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to show good cause for such a late submission anywhere in their motion for summary judgment.1

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Defendants do implicitly acknowledge the expiration of the motion filing deadline in
their pretrial statement, asking in paragraph 13 for permission to file a motion for summary
judgment “in the absence of any pretrial statement from plaintiff[.]” Defendants’ Pretrial
Statement at 6 (Docket No. 25). They do not explain how the lack of a pretrial statement from
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In the absence of any showing of good cause, or even any attempt to show it, the motion should

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be denied as untimely.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendants’ February 7, 2011, motion for summary judgment be denied as

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untimely.
2. The pretrial conference be set for September 7, 2011, at 10:00 a.m. before

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District Judge Kimberly J. Mueller, in Courtroom No. 3, with plaintiff appearing telephonically.

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3. Trial of this case be set to commence November 7, 2011, at 10:00 a.m. before

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District Judge Kimberly J. Mueller, in Courtroom No. 3.
These findings and recommendations are submitted to the United States District

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

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

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 3, 2011

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/s/ Gregory G. Hollows

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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE

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GGH:hm - bill3048.46

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plaintiff (originally due on December 24, 2010, three months after the motion filing deadline)
impeded their ability to file a motion for summary judgment before the applicable deadline, nor
is any connection between the two apparent to the court. Defendants waited another month after
filing their pretrial statement before they filed the motion for summary judgment.
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