UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
March 28, 2011
The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION RE: DENIAL OF CROSS MOTIONS FOR SUMMARY JUDGMENT; DENYING MOTION FOR ENLARGEMENT OF TIME
On February 8, 2011, Magistrate Judge Bencivengo entered a Report and Recommendation Re: Denial of Cross Motions for Summary Judgment ("R & R"). The R & R, expressly incorporated herein, thoroughly and thoughtfully analyzed Plaintiff's claims, the evidentiary record, and recommended that the parties' cross motions for summary judgment be denied in their entirety. Having carefully considered the R & R, the record before the court, the absence of any objections to the R & R, and applicable authorities, the court adopts the R & R in its entirety.
Plaintiff also moves for an enlargement of time to respond to the R & R. In denying Plaintiff's motion for summary judgment, the R & R concluded that whether Defendant acted with the requisite malicious intent to cause harm to Plaintiff created a genuine issue of material fact. (R & R at p.12:3-4). The court notes that the application for enlargement of time fails to identify any additional evidence that may be marshaled to conclusively establish that Defendant acted with the requisite intent. Whether Defendant acted with the requisite intent presents a question of fact which is generally inappropriately decided on a motion for summary judgment. See Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999). The court docket also reflects that this matter has been referred to the Prisoner Settlement Program. (Ct. Dkt. 159). In light of the referral to the Prisoner Settlement Program, the court denies the application without prejudice, subject to renewal within 60 days after the conclusion of the settlement proceedings.
In sum, the court adopts the R & R in its entirety, denies the cross motions for summary judgment, and denies, without prejudice, the application for enlargement of time.
IT IS SO ORDERED.
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