-GGH (TEMP)(PC) Billingsley v. Solano County Jail Medical Staff, No. 2:2008cv03048 - Document 34 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 06/03/11 recommending that defendants' 02/07/11 motion for summary judgment be denied as untimely. The pretrial conference be set for 09/07/11 at 10:00 a.m. before Di strict Judge Kimberly J. Mueller in courtroom 3 with plaintiff appearing telephonically. Trial of this case be set to commence 11/07/11 at 10:00 a.m. before District Judge Kimberly J. Mueller in courtroom 3. MOTION for SUMMARY JUDGMENT 29 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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-GGH (TEMP)(PC) Billingsley v. Solano County Jail Medical Staff Doc. 34 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL BILLINGSLEY, 11 12 13 Plaintiff, No. CIV S-08-3048 KJM GGH (TEMP) P vs. KADAVARI, et al., 14 Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. Pending before the court is defendants’ motion for summary judgment. 18 The governing scheduling order set the deadline for pretrial motions, except 19 motions to compel discovery, at September 24, 2010. See Order (Docket No. 19). Neither side 20 filed any pretrial motions before that deadline. Defendants filed the instant motion for summary 21 judgment on February 7, 2011, approximately four-and-a-half months too late. Defendants have 22 not filed a motion for leave to file a dispositive motion beyond the deadline, nor do they attempt 23 to show good cause for such a late submission anywhere in their motion for summary judgment.1 24 1 25 26 Defendants do implicitly acknowledge the expiration of the motion filing deadline in their pretrial statement, asking in paragraph 13 for permission to file a motion for summary judgment “in the absence of any pretrial statement from plaintiff[.]” Defendants’ Pretrial Statement at 6 (Docket No. 25). They do not explain how the lack of a pretrial statement from 1 Dockets.Justia.com 1 In the absence of any showing of good cause, or even any attempt to show it, the motion should 2 be denied as untimely. 3 Accordingly, IT IS HEREBY RECOMMENDED that: 4 1. Defendants’ February 7, 2011, motion for summary judgment be denied as 5 6 untimely. 2. The pretrial conference be set for September 7, 2011, at 10:00 a.m. before 7 District Judge Kimberly J. Mueller, in Courtroom No. 3, with plaintiff appearing telephonically. 8 3. Trial of this case be set to commence November 7, 2011, at 10:00 a.m. before 9 10 District Judge Kimberly J. Mueller, in Courtroom No. 3. These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 12 days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 15 shall be served and filed within fourteen days after service of the objections. The parties are 16 advised that failure to file objections within the specified time may waive the right to appeal the 17 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: June 3, 2011 19 /s/ Gregory G. Hollows 20 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 21 22 23 GGH:hm - bill3048.46 24 25 26 plaintiff (originally due on December 24, 2010, three months after the motion filing deadline) impeded their ability to file a motion for summary judgment before the applicable deadline, nor is any connection between the two apparent to the court. Defendants waited another month after filing their pretrial statement before they filed the motion for summary judgment. 2

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