Chappell v. Duc et al

Filing 57

ORDER signed by Judge Kimberly J. Mueller on March 30, 2013. Granting in part and denying in part 36 Motion for Summary Judgment ; denying 52 plaintiff's Request for Subpoenas; adopting in part and denying in part 53 FINDINGS AND RECOMMENDATIONS; and remanding the case to the magistrate judge for further proceedings. (Andrews, P)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REX CHAPPELL,
Plaintiff,

ORDER

vs.

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No. 2:10-cv-2676 KJM AC P

Defendants.

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DUC, 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.
On January 29, 2013, 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 twenty-eight days. Plaintiff has filed

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objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,

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the court adopts the findings and recommendations in part and denies them in part.

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The magistrate judge determined that plaintiff’s complaint raised two issues:

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(1) defendant Strohmaier attempted to subject plaintiff to potentially life-threatening conditions

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by directing him to enter a holding cage while handcuffed and improperly offered a medical

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diagnosis; and (2) that when plaintiff refused to enter the cage and Strohmaier returned plaintiff

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to his cell, this effected a delay in his medical treatment. ECF No. 53 at 9. The magistrate

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judge recognized that defendant Strohmaier addressed only the first issue in his motion in

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summary judgment, but went on to resolve the second issue as well, finding that the motion for

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summary judgment “fairly includes this alternate, incipient theory as to defendant Strohmaier.”

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ECF No. 53 at 12. In granting summary judgment on this basis, the magistrate judge observed

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that plaintiff did “not explain why defendant Strohmaier was responsible for the missed

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appointment, or – more importantly–for the one-month wait until plaintiff’s September 16, 2010

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appointment.” ECF No. 53 at 14-15.

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After reviewing defendant Strohmaier’s motion for summary judgment, the court

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does not find the issue of delayed medical care fairly raised. Defendant Strohmaier argues only

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broadly that he did not violate plaintiff’s Eighth Amendment rights because he did not subject

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plaintiff to “an extreme deprivation.” ECF No. 36.

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“‘Sua sponte grants of summary judgment are only appropriate if the losing party

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has reasonable notice that the sufficiency of his or her claim will be in issue.’” Norse v. City of

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Santa Cruz, 629 F.3d 966, 971-72 (quoting United States v. 14.02 Acres of Land More or Less in

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Fresno Cnty., 547 F.3d 943, 955 (9th Cir.1985)). Before granting summary judgment in the

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absence of a formal motion, the court must give reasonable notice and an opportunity for the

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party against whom judgment is contemplated “to develop and present facts and legal arguments

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in support of its position.” Portsmouth Square, Inc. v. Shareholders Protective Comm., 770 F.2d

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866, 869 (9th Cir. 1985). As the magistrate judge did not give plaintiff any notice that the

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sufficiency of his delay-in-treatment claim would be evaluated, this court cannot adopt the

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findings and recommendations on this issue.
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The court agrees with the magistrate judge’s analysis on the issue actually raised

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by defendant Strohmaier’s motion, as described above. Although plaintiff appeared to be

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making a motion to delay adjudication under Rule 56(d) of the Federal Rules of Civil Procedure,

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he did not explain why he had delayed seeking the discovery he claimed was essential to his

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defense of this issue. See Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th

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Cir.1994) (stating that party seeking a continuance must show a diligent pursuit of previous

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opportunities for discovery). The magistrate judge had previously denied two motions for

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discovery filed after the discovery cut-off date, noting in each instance that plaintiff had not

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explained why he had failed to pursue discovery earlier. ECF Nos. 41, 51.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed January 29, 2013, are adopted in part

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and denied in part;

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2. Plaintiff’s “Request for Subpoenas” (ECF No. 52) is denied;

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3. Defendant’s motion for summary judgment (ECF No. 36) is granted as to the

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claim that defendant subjected plaintiff to an extreme deprivation of his rights but denied as to

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the claim that defendant delayed plaintiff’s receiving medical care; and

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4. This case is remanded to the magistrate judge for further proceedings in

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accordance with this order.

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DATED: March 30, 2013.

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UNITED STATES DISTRICT JUDGE

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