Poslof v. Martel et al

Filing 82

ORDER Denying 64 Plaintiff's Motion for Partial Summary Judgment without Prejudice; Denying as Moot 76 Defendant Umugbe's Motion to Strike. Signed by Judge Michael M. Anello on 8/29/2019. (All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LONNIE LEE POSLOF, Jr.,
CDCR #BE-0659,

Case No.: 3:18-cv-761-MMA-AGS
ORDER DENYING PLAINTIFF’S
MOTION FOR PARTIAL
SUMMARY JUDGMENT WITHOUT
PREJUDICE;

Plaintiff,
vs.
MICHAEL MARTEL, et al.,
Defendants.

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[Doc. No. 64]

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DENYING AS MOOT DEFENDANT
UMUGBE’S MOTION TO STRIKE

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[Doc. No. 76]

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Plaintiff Lonnie Lee Poslof, Jr., a California prisoner proceeding pro se, brings this

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action pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights

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by various medical professionals and correctional officials. See Doc. No. 18. Plaintiff

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has filed a motion for partial summary judgment as to his Eighth Amendment claims, as

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well as a supporting declaration. See Doc. No. 64. Defendant Umugbe moves to strike

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certain paragraphs of Plaintiff’s supporting declaration. See Doc. No. 76. For the

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reasons set forth below, the Court DENIES Plaintiff’s motion for partial summary

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judgment without prejudice and DENIES AS MOOT Defendant Umugbe’s motion to

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strike.
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DISCUSSION

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This action arises out of events occurring as a result of Plaintiff’s fear of being

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placed on a non-designated yard with General Population (“GP”) inmates and his

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resulting suicide attempt. Plaintiff’s allegations are recited at length in the Court’s May

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7, 2019 Order Granting In Part and Denying In Part Defendants’ Motion to Dismiss

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Plaintiff’s Third Amended Complaint. See Doc. No. 43. Plaintiff has filed a Fourth

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Amended Complaint alleging various Eighth Amendment claims against Defendants

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Rastegari, Canedo, Torres, and Umugbe. Plaintiff now moves for partial summary

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judgment as to his inadequate medical care claims against all defendants See Doc. No.

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64.

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“A party may move for summary judgment, identifying each claim or defense – or

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the part of each claim or defense – on which summary judgment is sought. The court

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shall grant summary judgment if the movant shows that there is no genuine dispute as to

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any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

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P. 56(a). The party seeking summary judgment bears the initial burden of establishing

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the basis of its motion and of identifying the portions of the declarations, pleadings, and

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discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). A dispute about a material fact is genuine if there is

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sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id.

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at 248.

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In applying the standard set forth under Rule 56, district courts must “construe

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liberally motion papers and pleadings filed by pro se inmates and . . . avoid applying

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summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.

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2010). However, as the moving party, a pro se litigant cannot establish a sufficient basis

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for summary judgment simply with unsupported assertions in legal memoranda or

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generalized references to evidence. See S.A. Empresa, Etc. v. Walter Kidde & Co., 690

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F.2d 1235, 1238 (9th Cir. 1982); Fed. R. Civ. P. 56(c), (e). And although Federal Rule of

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Civil Procedure 56 allows a motion for summary judgment to be filed “at any time until
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30 days after the close of all discovery,” the rule contemplates that the moving party will

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support his factual allegations with materials obtained through discovery and the

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opposing party be allowed the opportunity to pursue discovery prior to responding to a

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motion for summary judgment. See Fed. R. Civ. P. 56(b)-(d).

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Here, Plaintiff filed his motion for summary judgment without the benefit of any

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discovery. He fails to support his motion with any competent evidence demonstrating the

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absence of a genuine issue of material fact as to whether Defendants violated his Eighth

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Amendment right to adequate medical care. Plaintiff submits only a sworn declaration

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consisting of immaterial statements and legal conclusions. In sum, Plaintiff’s motion is

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unsupported by evidence and premature and must be denied on these grounds. See, e.g.,

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Moore v. Hubbard, No. 06cv2187, 2009 U.S. Dist. LEXIS 20513, 2009 WL 688897, at

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*1 (E.D. Cal. Mar. 13, 2009) (recommending that pre-discovery motion for summary

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judgment be denied as premature); see also Burlington N. Santa Fe R.R. Co. v.

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Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003)

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(stating that when “a summary judgment motion is filed so early in the litigation, before a

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party has had any realistic opportunity to pursue discovery relating to its theory of the

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case,” nonmovants should be permitted to take discovery prior to considering motion for

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summary judgment).

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CONCLUSION

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Based on the foregoing, the Court DENIES Plaintiff’s motion for partial summary

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judgment without prejudice and DENIES AS MOOT Defendant Umugbe’s motion to

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strike.

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IT IS SO ORDERED.
DATE: August 29, 2019

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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