St. Clair v. Schlachter

Filing 37

ORDER ADOPTING 35 FINDINGS AND RECOMMENDATIONS signed by Judge Kimberly J. Mueller on 3/30/15. Plaintiff's 27 Motion for Summary Judgment is DENIED without prejudice. Parties shall meet and confer and file a joint statement within 30 days. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JIMMY R. ST. CLAIR,

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Plaintiff,

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No. 2:13-cv-0804 KJM DAD P

v.

ORDER

STAN SCHLACHTER,

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Defendant.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Because defendant has never

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responded to the court’s order directing filing of the form to indicate consent or not, the case has

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now been assigned to the undersigned as presiding judge. See ECF 16.
On January 6, 2015, the magistrate judge filed findings and recommendations,

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,

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this court has conducted a de novo review of this case. Having carefully reviewed the file, the

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court adopts the magistrate judge’s ultimate recommendations but with the clarification provided

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below. Specifically, plaintiff’s motion for partial summary judgment will be denied without

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prejudice.

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The United States Court of Appeals for the Ninth Circuit has “held consistently

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that courts should construe liberally motion papers and pleadings filed by pro se inmates and

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should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144,

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1150 (9th Cir. 2010). Plaintiff’s declaration filed with his motion for summary judgment and his

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verified complaint, referred to in the declaration, are sufficient evidence of the alleged assault by

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defendant Schlacter to shift the burden to defendant to bring forth evidence in opposition to the

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material averments of those documents. See, e.g., Johnson v. Meltzer, 134 F.3d 1393, 1399-1400

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(9th Cir. 1998). In opposing the motion, defendant elected not to tender such evidence and

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instead chose to argue that plaintiff’s failure to specifically indicate in his declaration that the

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material facts of the alleged assault are undisputed or to include those averments in his separate

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statement of undisputed facts is sufficient, without more, to defeat summary judgment.

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Defendant also argues that plaintiff’s declaration is insufficient without corroboration to establish

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material facts of the alleged assault. For the reasons set forth here, neither of these contentions

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has merit.

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In sum, the court is faced with a record where there is no evidence tendered in

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opposition to the material averments of plaintiff’s declaration and his verified complaint. As the

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magistrate judge notes, in his opposition to the motion defendant did request an opportunity to

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provide supplemental briefing and evidence if the court considered “Plaintiff’s declaration as

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setting forth material facts.” ECF No. 35 at 8 n.5 (quoting Def.’s Opp’n, ECF No. 28 at 6). This

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court’s review of the record gives rise to a substantial inference that defendant is likely, if given

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another opportunity, to come forward with such evidence. Defendant has denied all material

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averments of the complaint in his answer; the answer however is not verified and therefore has no

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evidentiary value on summary judgment. See ECF No. 19. In addition, defendant did not file his

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own motion for summary judgment within the time originally set by the magistrate judge for

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dispositive motions in this action. From this, the court concludes that key facts material to
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plaintiff’s claim are likely in dispute. In the interests of judicial economy and justice, the court

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will deny plaintiff’s motion for partial summary judgment without prejudice. The parties will be

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given a period of thirty days in which to meet and confer to determine whether plaintiff’s motion

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for partial summary judgment should be renewed or, instead, whether this action should proceed

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to pretrial conference and jury trial.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The recommendations filed January 6, 2015 are adopted with the clarification

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provided in this order;
2. Plaintiff’s motion for partial summary judgment (ECF No. 27) is denied
without prejudice;
3. Within thirty days from the date of this order the parties shall meet and confer

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and file a joint statement setting forth their views on whether plaintiff’s motion for partial

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summary judgment should be renewed or, instead, whether this action should proceed to pretrial

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conference and jury trial.

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DATED: March 30, 2015.

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UNITED STATES DISTRICT JUDGE

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