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Daniels v. Alvarado

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 6, 2009

TED DARNELL DANIELS PLAINTIFF,
v.
O. ALVARADO, ET AL. DEFENDANTS.

The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

In this civil rights action brought pursuant to 28 U.S.C. §1983, Plaintiff Ted Darnell Daniels moves for summary judgment on his Eighth Amendment Claim that Defendants used excessive force. The only basis for the motion for summary judgment is Plaintiff's argument that this court denied Defendant's motion to dismiss the First Amended Complaint and therefore there is no genuine issue of material facts. Plaintiff fails to submit any evidence in support of his motion.*fn1

The moving party on a motion for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, when "'the moving party bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence were uncontroverted at trial.'" Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (emphasis in original) (quoting International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)).

Here, Plaintiff's failure to submit any evidence in support of his motion is fatal to his motion for summary judgment brought pursuant to Fed.R.Civ.P. 56. Consequently, the court denies the motion for summary judgment.

IT IS SO ORDERED.


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