Grant v. Knipp et al

Filing 46

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)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARRAN GRANT, 12 13 14 15 No. 2:11-cv-2302 KJM KJN P Plaintiff, v. ORDER S. PALOMARES, Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 5, 2014, the magistrate judge filed amended findings and recommendations, 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. Neither party has filed 23 objections to the findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 25 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de 26 novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having 27 carefully reviewed the file, the court finds the findings and recommendations to be supported by 28 the record and by the proper analysis. 1 1 In its prior order and findings and recommendations, the court construed a portion of 2 plaintiff’s response to the motion for summary judgment as a motion to compel discovery, as 3 indeed it was denominated, and denied it, as it was based on California case law giving criminal 4 defendants access to police officers’ personnel records in certain circumstances. Pitchess v. 5 Superior Court, 11 Cal. 3d 531 (1974); see ECF No. 42 at 2-3. It is unclear, however whether 6 plaintiff was attempting to raise a motion to continue the summary judgment proceedings under 7 Rule 56(d) of the Federal Rules of Civil Procedure. Even if the motion is so interpreted, 8 however, it was not sufficient to forestall the ultimate resolution of the summary judgment 9 motion; nothing he presented in the instant motion satisfies the Rule 56(d) requirements. See 10 Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (stating that party seeking more time 11 under Rule 56(d) (previously 56(f)) must submit a declaration showing what facts he hopes to 12 discover to raise a material issue of fact). 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The amended findings and recommendations filed February 5, 2014, are adopted in 15 full; 16 2. Defendant’s motion for summary judgment (ECF No. 30) is granted; and 17 3. This action is dismissed. 18 DATED: March 31, 2014. 19 20 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 2

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