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Bernabe v. Schwartz


December 24, 2008


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for summary judgment (Doc. 67). Defendants have filed an opposition to the motion (Doc. 70).

In his motion, plaintiff is requesting summary judgment against six defendants, Nelson, McAllister, Ware, Altchek, Jones and King, based on this court's denial of their motion to dismiss. The defendants object to the granting of a motion for summary judgment because plaintiff has not complied with the requirements of the Local Rules by failing to provide notice and failure to file a statement of undisputed facts. See Local Rules 78-230(b), 56-260(a).


Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)).


Plaintiff's third amended complaint was filed November 20, 2006. The court found the third amended complaint sufficient to state a claim against defendants Nelson, Ware, McAllister, Altchek, Jones and King. (See Doc. 35). Plaintiff claims defendant Nelson used excessive force against him by assaulting him with keys and a baton, defendants Jones and King denied him access to his legal property and defendants McAllister, Altchek and Ware deprived him of his needed prescription medicine. The defendants filed a motion to dismiss for failure to exhaust and failure to state a claim. The motion to dismiss was denied and this case proceeds on plaintiff's Eighth Amendment claims against defendants Nelson, McAllister, Altchek and Ware, and on plaintiff's Fourteenth Amendment right of access to the courts claim against defendants Jones and King.


Local Rule 78-230(b) requires all motions to be noticed on the motion calendar except as otherwise provided in the Rules. Rule 78-230(m) controls motions filed in prisoner cases. Rule 78-230(m) provides that all motions filed in prisoner cases, where one party is incarcerated and proceeding pro per, are submitted upon the record without oral argument unless otherwise ordered. In this case, the defendants are objecting to plaintiff's lack of notice pursuant to 78-230(b). However, this case is governed by 78-230(m) as plaintiff is incarcerated and is proceeding in pro per. Therefore, notice of motion on the motion calendar was not required and the motion was submitted on the record.

However, Local Rule 56-260(a) is applicable to prisoner cases. Rule 56-260(a) provides:

Each motion for summary judgment . . . shall be accompanied by a "Statement of Undisputed Facts" that shall enumerate discretely each of the specific material facts relied upon in support of the motion and cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission or other document relied upon to establish that fact. The moving party shall be responsible for the filing with the Clerk of all evidentiary documents cited in the moving papers.

Defendants rightfully object to the granting of plaintiff's motion due to his failure to comply with this rule. Plaintiff failed to file a separate statement of undisputed facts and has not identified any material facts which are undisputed. Plaintiff relies on the court's denial of the defendant's motion to dismiss as the basis for his motion. This reliance is insufficient. The standards relating to a motion to dismiss are different that the standards governing motions for summary judgment. On a motion to dismiss, the court evaluates the sufficiency of the allegations raised in a complaint. As such, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order for a complaint to survive a motion to dismiss, it must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). Allegations of specific facts are not necessary so long as the statement of facts gives the defendant fair notice of what the claim is and the grounds upon which it rests. See Erickson v. Pardus, 127 S.Ct. 2197 (2007).

This differs from a motion for summary judgment in which the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine whether a genuine issue as to any material fact actually exists. See Fed. R. Civ. P. 56(c). Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In this case, plaintiff has not presented any facts for the court to evaluate. His reliance on the court's denial of the motion to dismiss is insufficient to allow the court to grant a motion for summary judgment. Plaintiff's failure to submit a statement of undisputed facts demonstrates this defect. The moving party bears the initial burden of demonstrating that there exists no genuine issue as to any material fact. Beyond plaintiff's failure to comply with the Local Rules, he has not met his burden of showing the court the absence of a genuine issue of material fact.


Based on the foregoing, the undersigned recommends that plaintiff's motion for summary judgment be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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