-JFM (PC) Turner v. Shepherd et al, No. 2:2011cv00451 - Document 22 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 09/29/11 recommending that plaintiff's motion for summary judgment be denied without prejudice. Motion for Summary Judgment 13 referred to Judge Morrison C. England Jr. Objections due within 20 days. (Plummer, M)
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-JFM (PC) Turner v. Shepherd et al Doc. 22 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ANTHONY R. TURNER, Plaintiff, 11 12 No. 2:11-cv-0451 MCE JFM (PC) vs. 13 DIANE SHEPARD, et al., 14 Defendants. / 15 16 FINDINGS & RECOMMENDATIONS On February 17, 2011, plaintiff, a state prisoner proceeding pro se, filed a civil 17 rights action pursuant to 42 U.S.C. § 1983. On July 25, 2011, plaintiff filed a motion for 18 summary judgment. 19 A court must grant summary judgment if the pleadings and supporting documents, 20 viewed in the light most favorable to the non-moving party, “show that there is no genuine issue 21 as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. 22 Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary 23 judgment practice, the movant bears the initial responsibility of presenting the basis for its 24 motion and identifying those portions of the record, together with affidavits, that it believes 25 demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. 26 Summary judgment should not be entered where relevant evidence remains to be discovered. 1 Dockets.Justia.com 1 See Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988). In light of the virtually 2 non-existent evidentiary record, summary judgment at this stage would be premature. No 3 discovery has taken place. Indeed, defendants have not yet been served with the complaint. 4 Therefore, the court should deny plaintiff’s motion as premature. 5 6 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for summary judgment be denied without prejudice. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 9 days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised 12 that failure to file objections within the specified time may waive the right to appeal the District 13 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 DATED: September 29, 2011. 15 16 17 18 /014;turn0451.msj 19 20 21 22 23 24 25 26 2
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