ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently before the court are (1) plaintiff's motion for summary judgment (Docket No. 26); (2) plaintiff's motions for default judgment (Docket Nos. 31 and 34); (3) Defendants' motion to dismiss (Docket Nos. 30 and 47); (4) plaintiff's request for production of documents (Docket No. 32); and (5) plaintiff's request that the court order that he be seen by a doctor not employed by the California Department of Corrections and Rehabilitation ("CDCR") (Docket No. 33). For the following reasons, it is recommended that all of plaintiff's motions for summary judgment, default judgment, and outside medical care be denied. It is further recommended that defendants' motion to dismiss be denied. Lastly, it is ordered that plaintiff's request for production of documents be stricken.
Plaintiff's Amended Complaint, filed October 9, 2009, alleges that defendants Jackson and Hibbits assaulted him and that unidentified medical staff failed to properly treat him for the injuries he sustained in the assault. Dckt. No. 10. Other documents filed in this action reveal that the alleged assault took place on July 30, 2008. E.g., Dckt. No. 1 at 2; Dckt. No. 30 at 3. In its screening order of March 10, 2010, the court found that plaintiff had stated cognizable excessive force claims against defendants Jackson and Hibbits, but dismissed the remaining claims with leave to amend. Dckt. No. 12. Plaintiff elected not to amend the complaint and returned documents for service of process on defendants Jackson and Hibbits. Dckt. No. 17.
Plaintiff filed a civil action against these defendants based on the
same allegations once before, in Case No. CIV S-08-2291 SOM. That case
was dismissed without prejudice on January 21, 2009 after the court
concluded that plaintiff had not exhausted his administrative remedies
prior to filing the initial complaint in the action.*fn1
Case No. CIV S-08-2291 SOM, Dckt. No. 18. In doing so, the
court noted that plaintiff had filed an amended complaint on December
29, 2008 indicating that he had completed the grievance process
subsequent to filing the initial complaint. Id. at 6. The court
further noted, "This dismissal is without prejudice, meaning that
Rodella may immediately file another complaint if he has sufficiently
exhausted his administrative remedies." Id. at 8.
II. Plaintiff's Motion for Summary Judgment
Plaintiff has filed a motion for summary judgment. Dckt. No. 26. The motion itself is 1.5 pages long and is accompanied by an affidavit of the same length. Dckt. Nos. 26 & 27. In the motion, plaintiff refers to unidentified "pleadings, affidavits, declarations, and exhibits" as well as his original complaint in Case No. CIV S-08-2291 SOM and claims that these documents establish that "there should be no further dispute in this matter that the excessive force was done only to cause harm" and that the force was not inflicted "in good faith but as a personal retaliation used to maliciously and sadistically cause great bodily injuries." Dckt. No. 26. The motion was filed on May 19, 2010, well before either defendant had returned a waiver of service or were otherwise required to appear in the action and there has been no response to the motion by any defendant.*fn2
Apart from being filed prematurely, plaintiff's motion fails to comply with Local Rule 260(a). That rule requires that Each motion for summary judgment or summary adjudication 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 of all evidentiary documents cited in the moving papers.
Plaintiff has not provided a statement of facts specifying each material fact relied on and citing each item of supporting evidence, and it is not clear whether the material facts necessary to establish plaintiff's excessive force claims are, indeed, undisputed. Thus plaintiff has not complied with either Local Rule 260(a) or Rule 56 of the Federal Rules of Civil Procedure. Accordingly, the undersigned recommends denial of plaintiff's motion for summary judgment without prejudice to plaintiff filing a renewed motion for summary judgment that complies with the Federal Rules of Civil Procedure and this court's Local Rules.*fn3 ////
III. Plaintiffs' Motions for Default Judgment
Plaintiff has filed two briefs, on July 6, 2010 and July 9, 2010, seeking entry of default judgment against defendants. Dckt. Nos. 31 & 34. As noted earlier in these recommendations, defendant Jackson was sent a waiver of service form on May 4, 2010 and defendant Hibbits was sent a waiver of service form on September 8, 2010. Defendant Jackson timely appeared within 60 days of May 4, 2010 by filing the pending motion to dismiss on July 6, 2010. See Fed. R. Civ. P. 12(a) (providing that a defendant must serve a response to the complaint within 60 days after the request for a waiver was sent). Defendant Hibbits timely appeared by filing a notice of joinder in defendant Jackson's motion to dismiss on November 10, 2010. Id. Accordingly, entry of default judgment against defendants is not appropriate, and plaintiff's motions for default judgment must be denied.
IV. Plaintiff's Motion for "Outside Care"
Plaintiff has filed a "Motion Ordering California Department of Corrections to Provide Outside Care." Dckt. No. 33. In the motion, plaintiff claims that the injuries he sustained in the alleged assault by defendants Jackson and Hibbits are not being adequately treated by prison medical staff and requests an order directing the CDCR to have him seen by "an outside doctor." However, CDCR is not a party to the action, and plaintiff's claims of inadequate medical treatment against unknown parties have been dismissed without prejudice by plaintiff's consent following the court's screening order limiting the case to the excessive force claims asserted against defendants Jackson and Hibbits. Further, plaintiff has not made the requisite showing to obtain preliminary injunctive relief. Winter v. Natural Res. Defense Council, 555 U.S. 7, 129 S. Ct. 365, 374 (2008) ("A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."). As plaintiff has not made the requisite showing and the requested relief is outside the scope of this action as it currently stands, the undersigned recommends that his motion for outside care be denied.
V. Defendants' Motion to Dismiss
Defendant Jackson, joined by defendant Hibbits, moves to dismiss plaintiff's complaint on the grounds that plaintiff has failed to exhaust his administrative remedies as required by ...