Galik v. Namgalama et al

Filing 66

ORDER signed by Magistrate Judge Kendall J. Newman on 3/27/12 granting 62 Motion to file a second dispositive motion. Within 30 days of the date of this order, defendants shall file a second dispositive motion addressing the Eighth Amendment claim against defendant Duc; plaintiff may file an opposition within 21 days thereafter; defendants may file a reply to plaintiff's opposition within 7 days thereafter. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

KEVIN GALIK,

11
12
13
14
15
16

Plaintiff,

No. 2: 09-cv-0152 WBS KJN P

vs.
A. NANGALAMA, et al.,
Defendants.

ORDER
/

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

17

pursuant to 42 U.S.C. § 1983. Pending before the court is defendants’ February 13, 2012 motion

18

for leave to file a second dispositive motion. On March 22, 2012, plaintiff filed an opposition.

19

For the following reasons, defendants’ motion is granted.

20

On June 1, 2011, defendants filed a motion to dismiss and, in the alternative,

21

motion for summary judgment. On October 14, 2011, the undersigned recommended that all

22

claims against defendant Nangalama and the Equal Protection claim against defendant Duc be

23

dismissed for failing to state a claim upon which relief may be granted. The undersigned further

24

recommended that defendants’ motion to dismiss against defendant Duc for failure to exhaust

25

administrative remedies be denied. The undersigned further recommended that defendants’

26

motion for summary judgment against defendant Duc be granted as to the due process claim and
1

1

denied as to the Eighth Amendment claim.

2
3

On November 1, 2011, defendants filed objections to the findings and
recommendations. Defendants attached new evidence to their objections.

4

On February 7, 2012, the Honorable William B. Shubb adopted the October 14,

5

2011 findings and recommendations. In this order, Judge Shubb declined to consider the new

6

evidence submitted by defendants in their objections. Judge Shubb stated that defendants were

7

not prohibited from requesting leave to file a second dispositive motion from the undersigned.

8
9

In the pending motion, defendants request leave to file a second summary
judgment motion addressing the remaining Eighth Amendment claim against defendant Duc.

10

Defendants state that they will present new evidence demonstrating that defendant Duc is entitled

11

to summary judgment. Plaintiff opposes granting this request.

12

The undersigned is reluctant to grant defendants’ request for the reasons discussed

13

by Judge Shubb in his February 7, 2012 order. (See Dkt. No. 61 at 4-5.) However, the

14

undersigned is also mindful of requiring a trial on issues that could have been resolved as a

15

matter of law. Having weighed all factors, the undersigned finds that it is in the court’s best

16

interest, in this particular case, to grant defendants’ motion for leave to file a second dispositive

17

motion.

18

Accordingly, IT IS HEREBY ORDERED that:

19

1. Defendants’ February 13, 2012 motion for leave to file a second dispositive

20

motion (Dkt. No. 62) is granted;

21

2. Within thirty days of the date of this order, defendants shall file a second

22

dispositive motion addressing the Eighth Amendment claim against defendant Duc; plaintiff may

23

////

24

////

25

////

26

////
2

1

file an opposition within twenty-one days thereafter; defendants may file a reply to plaintiff’s

2

opposition within seven days thereafter.

3

DATED: March 27, 2012

4
5

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

6
7

gal152.supp

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3