McClintock v. Colosimo, et al

Filing 90

ORDER adopting 86 FINDINGS AND RECOMMENDATIONS, denying 76 Motion to be returned to previous housing and denying 79 Motion for Summary Judgment signed by District Judge Troy L. Nunley on 3/31/17. (Kaminski, H)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN McCLINTOCK, 12 Plaintiff, 13 14 No. 2:13-cv-00264-TLN-DB v. ORDER COLOSIMO, et al., 15 Defendants. 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 pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On February 2, 2017, the Magistrate Judge filed findings and recommendations herein, 20 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. (ECF No. 86.) 23 Defendants have filed objections to the findings and recommendations.1 (ECF No. 87.) 24 1 25 26 27 28 In their objections, Defendants accuse the Magistrate Judge of “improperly assum[ing] the role of Plaintiff’s attorney.” (ECF No. 87 at 4.) The basis of this charge is Defendants’ apparent belief that they are automatically entitled to have their motion for summary judgment granted because the Magistrate Judge concluded Plaintiff failed to comply with Local Rule 260(b) in opposing their motion. (ECF No. 87 at 2–3.) This is not the law. Pinder v. Employment Dev. Dep’t, No. 2:13-CV-00817-TLN-DB, 2017 WL 56863, at *7 (E.D. Cal. Jan. 5, 2017) (explaining that a district court “cannot base the entry of summary judgment on the mere fact that the motion is unopposed”). Even “[w]hen a summary judgment motion is unopposed, a district court must ‘determine whether summary judgment is appropriate — that is, whether the moving party has shown itself to be entitled to judgment as a matter of law.’” Id. Of course, “[a] court ‘need not sua sponte review all of the evidentiary materials on file at the 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 2 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 3 Court finds the findings and recommendations to be supported by the record and by proper 4 analysis. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The findings and recommendations filed February 2, 2017 (ECF No. 86), are adopted 7 in full; 8 2. Defendants’ motion for summary judgment (ECF No. 79) is denied; and 9 3. Plaintiff’s motion to be returned to previous housing (ECF No. 76) is denied. 10 11 Dated: March 31, 2017 12 13 Troy L. Nunley United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 time the motion is granted, but [the court] must ensure that the motion itself is supported by evidentiary materials.’” Id. (emphasis added). Quite simply, there is no indication that the Magistrate Judge did anything improper. Moreover, the Magistrate Judge explained that she considered Plaintiff’s opposition to Defendants’ motion in concluding that Plaintiff disputed Defendants’ version of events because the opposition was made under “penalty of perjury.” (ECF No. 86 at 9 n.3) She did so relying on Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). Johnson v. Meltzer, 134 F.3d 1399–1400 (9th Cir. 1998), — upon which Jones relies — held that statements in a sworn opposition of a pro se litigant “are evidence to be considered when deciding a motion for summary judgment.” Defendants make no effort to explain why this is not the case here. As Defendants correctly observe the purpose of objections is to identify errors in the findings and recommendations. The Court hereby admonishes Defendants that objections are not to be used as a vehicle for personally attacking a United States magistrate judge. 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?