IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 26, 2012
TERRENCE BROWNLEE, PLAINTIFF,
D.L. PORTER, ET AL., DEFENDANTS.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. His sole remaining claim is against defendant Friedrichs for alleged violation of the Eighth Amendment. Presently before the court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Dckt No. 52.
On November 10, 2011, the undersigned issued findings and recommendations recommending that the motion be granted. Dckt. No. 61. The district judge declined to adopt those findings and recommendations, instead finding that certain material factual issues remained and that defendant had not carried his burden to demonstrate the absence of such a dispute as to other issues. Dckt. No. 63 (concluding that it remains disputed whether plaintiff was scheduled for back surgery when transferred and whether a delay in that surgery caused him injury and further concluding that defendant failed to show the absence of a material dispute regarding whether plaintiff's transfer delayed his back surgery). By necessary implication, that finding denied defendant's motion.
Defendant Friedrichs now seeks leave to file a second summary judgment motion, to address the court's findings by "interpret[ing] the medical records assumed by Brownlee to be evidence of Dr. Friedrichs' deliberate indifference." Dckt. No. 65 at 2. Plaintiff has filed no opposition to the request. The court will grant leave to file a second summary judgment motion within 30 days of the date of this order. Plaintiff's opposition to the motion, if any, shall be filed not more than 21 days after service of the motion. Defendant's reply, if any, shall be filed not more than seven days after service of plaintiff's opposition.
IV. Order and Recommendation
Accordingly, it is hereby ORDERED that defendant's April 27, 2012 motion for leave to file a new motion for summary judgment (Docket No. 65) is granted, and the briefing of the motion shall be as set forth above.
Further, it is RECOMMENDED that defendant's May 9, 2011 motion for summary judgment (Docket No. 52) 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 fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a 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 the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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