Grant v. Knipp et al
ORDER signed by Judge Kimberly J. Mueller on 3/31/2014 ORDERING 44 FINDINGS AND RECOMMENDATIONS are ADOPTED in full; defendant's 30 Motion for Summary Judgment is GRANTED; and this action is DISMISSED. CASE CLOSED.(Waggoner, D)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:11-cv-2302 KJM KJN P
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided
by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 5, 2014, the magistrate judge filed amended findings and recommendations,
which were served on all parties and which contained notice to all parties that any objections to
the findings and recommendations were to be filed within fourteen days. Neither party has filed
objections to the findings and recommendations.
The court presumes that any findings of fact are correct. See Orand v. United States,
602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de
novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having
carefully reviewed the file, the court finds the findings and recommendations to be supported by
the record and by the proper analysis.
In its prior order and findings and recommendations, the court construed a portion of
plaintiff’s response to the motion for summary judgment as a motion to compel discovery, as
indeed it was denominated, and denied it, as it was based on California case law giving criminal
defendants access to police officers’ personnel records in certain circumstances. Pitchess v.
Superior Court, 11 Cal. 3d 531 (1974); see ECF No. 42 at 2-3. It is unclear, however whether
plaintiff was attempting to raise a motion to continue the summary judgment proceedings under
Rule 56(d) of the Federal Rules of Civil Procedure. Even if the motion is so interpreted,
however, it was not sufficient to forestall the ultimate resolution of the summary judgment
motion; nothing he presented in the instant motion satisfies the Rule 56(d) requirements. See
Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (stating that party seeking more time
under Rule 56(d) (previously 56(f)) must submit a declaration showing what facts he hopes to
discover to raise a material issue of fact).
Accordingly, IT IS HEREBY ORDERED that:
1. The amended findings and recommendations filed February 5, 2014, are adopted in
2. Defendant’s motion for summary judgment (ECF No. 30) is granted; and
3. This action is dismissed.
DATED: March 31, 2014.
UNITED STATES DISTRICT JUDGE
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