(PC) Burney v. Tilton et al, No. 2:2005cv01849 - Document 43 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/6/09 recommending that plaintiffs motion for summary judgment be denied as untimely. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 20 days.(Dillon, M)
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(PC) Burney v. Tilton et al Doc. 43 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MUJAHID IBN BURNEY III, Plaintiff, 11 vs. 12 13 No. CIV S-05-1849 FCD EFB P JEAN WOODFORD, et al., Defendants. 14 FINDINGS AND RECOMMENDATIONS / 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. He alleges that defendants failed to provide him with a diet that provides 18 adequate nutrition and conforms to his Muslim beliefs. 19 On July 14, 2008, plaintiff filed a motion for summary judgment. Defendants’ 20 opposition, filed on March 6, 2009, argues in part, that the motion should be denied because it 21 was filed more than seven months after the dispositive motion deadline. Plaintiff has not filed a 22 reply brief. 23 Plaintiff’s motion is untimely. On July 5, 2007, the court issued a discovery and 24 scheduling order, which required that all dispositive motions be filed on or before November 23, 25 2007. A schedule may be modified only upon a showing of good cause. Fed. R. Civ. P. 16(b). 26 //// 1 Dockets.Justia.com 1 Good cause exists when the moving party demonstrates he cannot meet the deadline despite 2 exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 3 1992). Plaintiff filed his motion for summary judgment almost eight months after the deadline 4 for doing so had passed. Plaintiff never requested that the scheduling order be modified, and 5 there is no indication that good cause exists to modify the scheduling order. Thus, the motion 6 should be denied as untimely. See U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 7 F.2d 1099, 1104 (9th Cir. 1985). 8 9 10 Accordingly, it is hereby RECOMMENDED that plaintiff’s July 14, 2008, motion for summary judgment be denied as untimely. These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days 12 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.” Failure to file objections 15 within the specified time may waive the right to appeal the District Court’s order. Turner v. 16 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: October 6, 2009. 18 19 20 21 22 23 24 25 26 2
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