(PC) Dalke v. King

3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA JOSHUA JASON DALKE, ) Case No.: 1:20-cv-00534-AWI-SAB (PC) ) 7 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 8 v. ) RECOMMENDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BE DENIED, KING CLARK, et al., ) WITHOUT PREJUDICE ) 10 ) (ECF No. 47) Defendants. ) 11 ) ) ) Plaintiff Joshua Jason Dalke is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

On December 22, 2020, Plaintiff filed a motion for summary judgment. (ECF No. 47.) For the reasons explained below, Plaintiff’s motion should be denied because it is premature.

“Although [Federal Rule of Civil Procedure 56] allows a motion for summary judgment to be filed at the commencement of an action, in many cases the motion will be premature until the nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had.”

Fed. R. Civ. P. 56, Advisory Committee’s Notes (2010 Amendments, Note to Subdivision (b)).

Indeed, many courts have denied pre-answer and pre-discovery motions for summary judgment as premature despite technical compliance with the timing provisions of Rule 56. See Williams v. Yuan Chen, No. S-10-1292 CKD P, 2011 WL 4354533, at * 3 (E.D. Cal. Sept. 16, 2011) (denying plaintiff’s summary judgment motion as premature where defendant had not yet filed an answer and the court had not issued a discovery order); Moore v. Hubbard, No. CIV-S-06-2187 FCD EFB P, 2009 WL 26 688897, at *1 (E.D. Cal. Mar. 13, 2009) (recommending that plaintiff’s motion for summary judgment || be denied as premature where “discovery has not yet begun, defendants have not yet filed an answer || and the court has yet to issue a discovery and scheduling order”).

3 Here, although Plaintiff's motion for summary judgment technically meets the timing requirements of Federal Rule of Civil Procedure 56(b), Plaintiff's motion is premature. As it stands, || the Court has not yet issued the discovery and scheduling order. Furthermore, Plaintiff's motion for || summary judgment does not comply with Local Rule 260(a), which requires that “[e]ach motion for ||summary judgment or summary adjudication shall be accompanied by a ‘Statement of Undisputed || Facts’ that shall enumerate discretely each of the specific material relied upon in support of the motic || and cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission || or other document relied upon to establish that fact.” Compliance with Local Rule 260(a) is ||mandatory. Therefore, since Plaintiff failed to include a Statement of Undisputed Facts with his ||summary judgment motion, Plaintiff's summary judgment motion is procedurally defective.

13 Accordingly, it is HEREBY RECOMMENDED that Plaintiff's motion for summary judgmen || (ECF No. 47), be DENIED, without prejudice.

15 This Findings and Recommendation will be submitted to the United States District Judge || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within fourteen (14) || days after being served with this Findings and Recommendation, Plaintiff may file written objections || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and || Recommendation.” Plaintiff is advised that the failure to file objections within the specified time ma || result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson || v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Ci |} 1991)).

24 IT IS SO ORDERED.

Al (Fe 25 pated: _ January 5, 2021 OF 26 UNITED STATES MAGISTRATE JUDGE