Hammler v. Director of CDCR et al

Filing 94

ORDER signed by Magistrate Judge Deborah Barnes on 2/7/2020 DENYING without prejudice plaintiff's 77 motion for summary judgment. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

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No. 2:17-cv-1949 MCE DB P

Plaintiff,

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v.

ORDER

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DIRECTOR OF CDCR, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff claims prison officials have failed to provide him

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with safe living conditions in violation of the Eighth Amendment. Presently before the court is

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plaintiff’s motion for summary judgment (ECF No. 77) and defendant’s opposition (ECF No. 82).
On September 16, 2019, plaintiff filed a motion for summary judgment. (ECF No. 77.)

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He argues the court should grant summary judgment because defendants are following the

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housing policy he challenges in this case and the only “remaining question is whether the

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defendant’s continuing in the course is legal.” (Id. at 1.)
Defendant filed an opposition arguing that the court should deny the motion because the

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court has not yet ruled on the pending motion to dismiss, the parties have not yet engaged in

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discovery, and plaintiff’s motion fails to comply with Local Rule 260(a). (ECF No. 82.)

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“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after

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adequate time for discovery and upon motion, against a party who fails to make a showing

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sufficient to establish the existence of an element essential to that party’s case, and on which that

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party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)

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(emphasis added). Defendant is entitled to conduct discovery before opposing a summary

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judgment motion. Fed. R. Civ. P. 56. Here, the motion to dismiss has not yet been resolved and

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the parties have yet to engage in discovery. Thus, plaintiff’s motion for summary judgment

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should be denied as premature. However, plaintiff may file a future motion for summary

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judgment that incorporates all relevant materials obtained after the period set for the completion

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of all discovery as contemplated by Rule 56. See Gordon v. Marquez, 2019 WL 1017323 at *1

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(E.D. Cal. Mar. 4, 2019) (denying as premature plaintiff’s motion for summary for summary

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judgment filed before the parties conducted discovery, but noting that plaintiff could file a future

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motion for summary judgment following a period of discovery). Accordingly, the court will deny

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plaintiff’s motion for summary judgment without prejudice.

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IT IS HEREBY ORDERED that plaintiff’s motion for summary judgment (ECF No. 77)

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is denied without prejudice.

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Dated: February 7, 2020

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DLB:12
DB/prisoner-civil rights/hamm1049.summ.prem

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