Turner v. Shepherd et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 09/29/11 recommending that plaintiff's motion for summary judgment be denied without prejudice. Motion for Summary Judgment 13 referred to Judge Morrison C. England Jr. Objections due within 20 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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ANTHONY R. TURNER,
Plaintiff,
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No. 2:11-cv-0451 MCE JFM (PC)
vs.
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DIANE SHEPARD, et al.,
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Defendants.
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FINDINGS & RECOMMENDATIONS
On February 17, 2011, plaintiff, a state prisoner proceeding pro se, filed a civil
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rights action pursuant to 42 U.S.C. § 1983. On July 25, 2011, plaintiff filed a motion for
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summary judgment.
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A court must grant summary judgment if the pleadings and supporting documents,
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viewed in the light most favorable to the non-moving party, “show that there is no genuine issue
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as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
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Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary
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judgment practice, the movant bears the initial responsibility of presenting the basis for its
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motion and identifying those portions of the record, together with affidavits, that it believes
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demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323.
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Summary judgment should not be entered where relevant evidence remains to be discovered.
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See Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988). In light of the virtually
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non-existent evidentiary record, summary judgment at this stage would be premature. No
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discovery has taken place. Indeed, defendants have not yet been served with the complaint.
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Therefore, the court should deny plaintiff’s motion as premature.
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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for
summary judgment be denied without prejudice.
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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 twenty
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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.” The parties are advised
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that failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: September 29, 2011.
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