(PC) Munir v. Thomas et al, No. 2:2005cv01996 - Document 73 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/10/2012 RECOMMENDING that the 47 order granting defendants' motion for summary judgment be vacated; defendants' 35 motion for summary judgment be denied wit hout prejudice; within 30 days of any order adopting these findings, defendants be allowed to file and serve a single motion for summary judgment that includes the Woods Notice, and that thereafter, plaintiff be directed to file and serve an opposition within 21 days, and defendants allowed to file a reply within 14 days. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)
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(PC) Munir v. Thomas et al Doc. 73 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MELVIN MUNIR, Plaintiff, 11 12 vs. 13 No. 2:05-cv-1996 MCE EFB P THOMAS, et al., Defendants. 14 FINDINGS AND RECOMMENDATIONS / 15 Plaintiff is a former state prisoner proceeding without counsel in an action brought under 16 17 42 U.S.C. § 1983. Earlier in this action, the court granted in part defendants’ motion for 18 summary judgment. Dckt. No. 47. In light of the recent decision of Woods v. Carey, 684 F.3d 19 934 (9th Cir. 2012), the court directed plaintiff to inform the court whether he wished to proceed 20 to trial or instead re-open the summary judgment motion that was partially resolved in 21 defendants’ favor. Dckt. No. 70. In response, plaintiff requested that defendants’ summary 22 judgment motion be denied or that he be permitted to file a new opposition to the summary 23 judgment motion. Dckt. No. 71. Defendants also requested an order directing them to re-serve 24 their previously filed summary judgment motion, and setting a date for plaintiff to file a new 25 opposition. Dckt. No. 72. 26 //// 1 Dockets.Justia.com 1 Accordingly, the undersigned will recommend that the March 28, 2008 order granting 2 defendants’ April 30, 2007 motion for summary judgment be vacated and that the motion be 3 denied without prejudice instead. 4 The court notes that in defendant Thomas’s pretrial statement, Thomas argued that the 5 court should “summarily dispose” of plaintiff’s remaining claims to “relieve defendant of the 6 costs and burden of trial.” Dckt. No. 69 at 16. In order to narrow the issues so that only those 7 properly warranting trial proceed to trial, the court recommends that defendants be permitted to 8 either re-file the April 30, 2007 motion, or to file an amended and comprehensive motion for 9 summary judgment, along with the notice to plaintiff required by Woods. 10 Accordingly, IT IS HEREBY RECOMMENDED that: 11 1. The March 28, 2008 order granting defendants’ motion for summary judgment (Dckt. 12 No. 47) be vacated. 2. Defendants April 30, 2007 motion for summary judgment (Dckt. No. 35) be denied 13 14 without prejudice. 15 3. Within thirty days of any order adopting these findings and recommendations, 16 defendants be allowed to file and serve a single motion for summary judgment that includes the 17 notice to plaintiff required by Woods, and that thereafter, plaintiff be directed to file and serve an 18 opposition within twenty-one days, and defendants allowed to file a reply, if any, within fourteen 19 days. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 25 //// 26 //// 2 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: October 10, 2012. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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