(PC) Lewis v. Quinto

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN LEWIS, JR., Case No. 1:22-cv-00628-NODJ-CDB (PC)

12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION FOR EXTENSION OF TIME (Doc. 38) 14 ALAN QUINTO, et al.,

15 Defendant. FINDINGS AND RECOMMENDATIONS 16 TO DENY PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, WITHOUT 17 PREJUDICE, AS PREMATURE 18 (Doc. 33)

19 14-DAY OBJECTION PERIOD 20

21 22 Plaintiff Kevin Lewis, Jr., is a state prisoner proceeding pro se and in forma pauperis in 23 this civil rights action filed under 42 U.S.C. § 1983. This action proceeds on an Eighth 24 Amendment claim for use of excessive force against Defendants Alan Quinto, Bobby Gilbert, 25 Shannon Brown, and John Hernandez, Correctional Officers (“COs”) at North Kern State Prison; 26 and a claim for failure to protect against COs Brown and Hernandez. (Doc. 20.)1 27 1 On January 16, 2024, the Court ordered Plaintiff to show cause why Defendant Hernandez should not be dismissed 1 A. Defendants’ Motion for Extension of Time 2 Pending before the Court is Defendants’ ex parte motion for a 14-day extension of time to 3 respond to the complaint. (Doc. 38.) According to the declaration of counsel for Defendants, 4 Connor Nordstrom, filed in support of the motion, Defendants require additional time in part 5 because counsel’s efforts to evaluate the case were hampered by Plaintiff’s misidentification of 6 two of the defendants and the date of the incident relevant to Plaintiff’s complaint. Id. at 4. 7 Based on counsel’s representations, the Court finds good cause to grant the requested extension. 8 B. Plaintiff’s Motion for Summary Judgment 9 Defendants also seek an extension of time to respond to Plaintiff’s motion for summary 10 judgment, filed January 11, 2024. (Doc. 33.) 11 Summary judgment is appropriate when it is demonstrated that there “is no genuine 12 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 13 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by “citing 14 to particular parts of materials in the record, including depositions, documents, electronically 15 stored information, affidavits or declarations, stipulations (including those made for purposes of 16 the motion only), admissions, interrogatory answers, or other materials....” Fed. R. Civ. P. 17 56(c)(1)(A). 18 Summary judgment should be entered, after adequate time for discovery and upon motion, 19 against a party who fails to make a showing sufficient to establish the existence of an element 20 essential to that party's case, and on which that party will bear the burden of proof at trial. See 21 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (emphasis added). “[A] complete failure of 22 proof concerning an essential element of the nonmoving party's case necessarily renders all other 23 facts immaterial.” Id. If the moving party meets its initial responsibility, the burden then shifts to 24 the opposing party to establish that a genuine issue as to any material fact actually does exist. See 25 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 26 In attempting to establish the existence of this factual dispute, the opposing party may not 27 rely upon the allegations or denials of their pleadings but is required to tender evidence of specific 1 that the dispute exists or shows that the materials cited by the movant do not establish the absence 2 of a genuine dispute. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. 3 The opposing party must demonstrate that the fact in contention is material, i.e., a fact that 4 might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 5 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 6 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable 7 jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 8 F.2d 1433, 1436 (9th Cir. 1987). In the endeavor to establish the existence of a factual dispute, the 9 opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient 10 that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ 11 differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of 12 summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there 13 is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 14 committee's note on 1963 amendments). 15 In resolving the summary judgment motion, the evidence of the opposing party is to be 16 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 17 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 18 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 19 obligation to produce a factual predicate from which the inference may be drawn. See Richards v. 20 Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th 21 Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 22 show that there is some metaphysical doubt as to the material facts.... Where the record taken as a 23 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 24 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 25 In his two-page motion, Plaintiff seeks summary judgment on the merits of his Eighth 26 Amendment excessive claim against Defendants. Plaintiff's motion for summary judgment is 27 premature pursuant to Rule 56 of the Federal Rules of Civil Procedure because summary 1 summary judgment “at any time,” the rule also allows the court, as is just, to deny the motion or 2 order a continuance for the opposing party to pursue discovery. Fed. R. Civ. P. 56. 3 Defendants have not yet answered Plaintiff’s operative complaint.2 The Court has not yet 4 issued its discovery order and discovery has not yet commenced. Written discovery (requests for 5 production of documents, interrogatories, admissions) has not yet been propounded and 6 depositions have not been taken. See Fed. R. Civ. P. 56(c)(1)(A). Defendants are entitled to an 7 opportunity to pursue discovery before responding to a summary judgment motion. Defendants 8 contend that without an opportunity to complete discovery, Plaintiff’s claims, and any viable 9 defenses thereto, cannot be evaluated. (Doc. 38 at 5.) 10 Based on the foregoing, the undersigned will recommend that Plaintiff's motion for 11 summary judgment be denied as premature. Plaintiff may file a motion for summary judgment 12 that incorporates after obtaining all relevant materials following completion of discovery as 13 contemplated by Rule 56. See, e.g., Moore v. Hubbard, No. CIV S-06-2187 FCD EFB P, 2009 14 WL 688897, at *1 (E.D. Cal. Mar. 13, 2009) (recommending that pre-discovery motion for 15 summary judgment be denied as premature); see also Burlington N. Santa Fe R.R. Co. v. 16 Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003) (noting 17 that when “a summary judgment motion is filed so early in the litigation, before a party has had 18 any realistic opportunity to pursue discovery relating to its theory of the case,” the district court 19 should grant requests by non-movants to take discovery prior to considering the motion for 20 summary judgment); Vining v. Runyon, 99 F.3d 1056, 1058 (11th Cir. 1996) (“A premature 21 decision on summary judgment impermissibly deprives the [defendants] of their right to utilize 22 the discovery process to discover the facts necessary to justify their opposition to the motion”). 23 Plaintiff's motion for summary judgment also fails to comply with Local Rule 260(a), 24 which requires that “[e]ach motion for summary judgment or summary adjudication shall be 25 accompanied by a ‘Statement of Undisputed Facts’ that shall enumerate discretely each of the 26 specific material relied upon in support of the motion and cite the particular portions of any 27

2 Although Plaintiff filed a first amended complaint (Doc. 17), the Court construed that pleading as an 1 | pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to 2 | establish that fact.” Compliance with Local Rule 260(a) is mandatory. Plaintiffs failure to include 3 || a Statement of Undisputed Facts with his summary judgment motion renders his summary 4 | judgment motion procedurally defective. Plaintiff is cautioned that any future motion for 5 | summary judgment must include a “Statement of Undisputed Facts” and must otherwise comply 6 | with the Local Rules. 7 CONCLUSION AND ORDER 8 Based on the foregoing, IT IS HEREBY ORDERED that: 9 1. Defendants’ motion for extension of time to respond to the complaint (Doc. 38) is 10 GRANTED and Defendants shall file a responsive pleading no later than February 26, 11 2024; 12 And IT IS HEREBY RECOMMENDED that: 13 2. Plaintiff’s motion for summary judgment (Doc. 33) be DENIED. 14 15 These Findings and Recommendations will be submitted to the district judge assigned to 16 | this case, pursuant to 28 U.S.C. § 636(b)(1). Within 14 days of the date of service of these 17 | Findings and Recommendations, a party may file written objections with the Court. The 18 | document should be captioned, “Objections to Magistrate Judge’s Findings and 19 | Recommendations.” Failure to file objections within the specified time may result in waiver of 20 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 21 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 | IT IS SO ORDERED. * | Dated: February 12, 2024 | Wr Pr 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28