(PC) Dalke v. King et al, No. 1:2020cv00534 - Document 113 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion for Summary Judgment, filed on June 28, 2021, be denied re 111 Motion for Summary Judgment ; referred to Judge Ishii, signed by Magistrate Judge Stanley A. Boone on 06/29/2021. (Objections to F&R due within 14-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 ) ) ) ) ) ) ) ) ) ) JOSHUA JASON DALKE, Plaintiff, v. KING CLARK, et al., Defendants. 16 17 18 19 20 Case No.: 1:20-cv-00534-AWI-SAB (PC) FINDINGS AND RECOMMENDATION RECOMMENDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BE DENIED (ECF No. 111) Plaintiff Joshua Jason Dalke is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s motion for summary judgment, filed on June 28, 2021. The Court deems Plaintiff’s motion suitable for review without opposition by Defendant. 21 I. 22 RELEVANT HISTORY 23 24 This action is proceeding against Defendants Cardona, Alcantar, Vera, Fugate, and Ramos for deliberate indifference to Plaintiff’s safety. 25 On January 4, 2021, Defendants Cardona, Vera, and Ramos filed an answer to the complaint. 26 On February 8, 2021, the Court issued the discovery and scheduling order. 27 On March 2, 2021, Defendants Alcantar and Fugate filed an answer to the complaint. 28 1 On May 10, 2021, Defendants filed a motion for summary judgment for failure to exhaust the 1 2 administrative remedies. 3 II. 4 DISCUSSION Plaintiff has not complied with the procedural requirements for filing a summary judgment 5 6 motion. Local Rule 260(a) requires that “[e]ach motion for summary judgment or summary 7 adjudication shall be accompanied by a ‘Statement of Undisputed Facts’ that shall enumerate 8 discretely each of the specific material relied upon in support of the motion and cite the particular 9 portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document 10 relied upon to establish that fact.” Here, Plaintiff has not submitted any legal argument in support of 11 her motion, has not included a separate statement of undisputed facts, and merely recites the factual 12 allegations set forth in his complaint. Compliance with Local Rule 260(a) is mandatory, and as a 13 result of Plaintiff’s failure to include a Statement of Undisputed Facts with his motion, it is 14 procedurally defective and should be denied on that ground. See Engrahm v. Cty. of Colusa, No. 15 2:04-cv-01290-GEB-GGH, 2005 WL 3440025, at *1 (E.D. Cal. Dec. 14, 2005) (failure to comply 16 with Local Rule 260 is an appropriate basis for denying a motion for summary judgment). 17 Accordingly, Plaintiff’s motion should be denied. 18 III. 19 RECOMMENDATION Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion for summary 20 21 judgment, filed on June 28, 2021, be denied. This Findings and Recommendation will be submitted to the United States District Judge 22 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 24 after being served with this Findings and Recommendation, Plaintiff may file written objections with 25 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 26 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 27 /// 28 /// 2 1 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 2 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5 Dated: 6 June 29, 2021 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 Here, although Plaintiff’s motion for summary judgment technically meets the timing requirements of Federal Rule of Civil Procedure 56(b), Plaintiff’s motion must be denied. 17 18 19 20 21 22 23 24 25 26 27 28 3

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