Mitchell v. Cate et al

Filing 91

ORDER signed by Magistrate Judge Allison Claire on 07/23/14 vacating 65 Motion for Summary Judgment from the court's calendar. Within 7 days: a) defendants must submit the documents for sealing pursuant to Local Rule 141(e)(2)(i), as identif ied in the order of 04/28/14 (and herein), b) must file a third amended separate statement of undisputed facts which must be corrected as noted above and c) show cause why additional sanctions should not be imposed for failure to comply with an order of the court. Defendants' motion for summary judgment will be renewed upon the court's calendar as of the date of their compliance with this order; however, the parties need not brief the motion further with the exception that plaintiff will have 30 days, upon service of defendants' third amended separate statement of undisputed facts, to file a response thereto. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY MITCHELL,
Plaintiff,

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No. 2: 11-cv-1240 JAM AC P

v.
MATTHEW L. CATE, et al.,

ORDER

Defendants.

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Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court are plaintiff’s motion for summary judgment, ECF No.

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64, filed on January 27, 2014, and defendants’ February 3, 2014 motion for summary judgment,

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ECF No. 65. This court has adjudicated two motions by the defendants to file exhibits under seal

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in support of their motion for summary judgment. See Orders at ECF Nos. 68, 81. The first

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motion was denied as overbroad but defendants were granted leave to renew it. The amended

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motion to seal was granted in part. As to that portion which defendants were permitted to file

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under seal, the court specified:

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Defendants’ amended motion to seal documents in support of their
motion for summary judgment, ECF No. 71, is granted in part.
Defendants shall provide to the Clerk of Court pursuant to Local
Rule 141(e)(2)(1) an electronic copy of the following documents
for filing under seal:
Exhibit A: pages A1 through A3, A5 through A11, and A13;
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Exhibit B: pages B14 through B16.
Order, filed on April 28, 2014, ECF No. 81 at 7.
A review of the case docket reveals that the referenced exhibits have not been submitted

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or filed under seal. Defendants’ second amended statement of disputed facts is therefore not

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adequately supported; in addition, a review of those “facts” indicates that several end in

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incomplete sentences and without citation to evidentiary support. See, e.g., ECF No. 82,

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defendants’ second amended separate statement of undisputed facts, Nos. 42, 46, 52.
The court will now vacate defendants’ motion for summary judgment. Defendants will be

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granted seven (7) days to submit the documents for electronic sealing identified in the order of

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April 28, 2014. Defendants must also submit a third amended separate statement of undisputed

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facts that are complete and include citation to supporting evidence. Defendants’ motion for

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summary judgment will be deemed renewed upon the date of defendants’ compliance with this

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order. In addition, plaintiff will have thirty days to file his response to defendants’ third amended

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statement of undisputed facts.
Defendants must also, within seven days, show cause why further sanctions should not be

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imposed for the failure to comply with a court order. The timing for adjudication of plaintiff’s

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dispositive motion is unaffected by this order.

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Accordingly, IT IS ORDERED that:

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1. Defendants’ February 3, 2014 motion for summary judgment, ECF No. 65, is hereby

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VACATED from the court’s calendar;

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2. Within seven (7) days: (a) defendants must submit the documents for sealing, pursuant

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to Local Rule 141(e)(2)(i), as identified in the order of April 28, 2014 (and herein), (b) must file a

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third amended separate statement of undisputed facts which must be corrected as noted above and

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(c) show cause why additional sanctions should not be imposed for failure to comply with an

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order of the court;
3. Defendants’ motion for summary judgment will be renewed upon the court’s calendar

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as of the date of their compliance with this order1; however, the parties need not brief the motion

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further with the exception that plaintiff will have thirty days, upon service of defendants’ third

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amended separate statement of undisputed facts, to file a response thereto;

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4. Adjudication of plaintiff’s dispositive motion may proceed and is unaffected by this

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order.

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DATED: July 23, 2014

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Assuming defendants’ compliance with this order, their motion for summary judgment, as
renoticed, will not be deemed untimely filed.
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