United States District Court, E.D. California
GORDON D. MEADOR, Plaintiff,
M. HAMMER, et al., Defendants.
KIMBERLY J. MUELLER, District Judge.
Plaintiff, a state prisoner proceeding in forma pauperis and with counsel, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 16, 2015, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. ECF No. 86. Defendants have filed a document styled as objections to the findings and recommendations. ECF No. 88. Defendants do not actually object to any of the magistrate judge's findings or recommendations. Instead, they request an order under Federal Rule of Civil Procedure 56(g) stating that it is an established fact in this action that plaintiff did not sustain any physical damage to his heart. ECF No. 88 at 2-3. Defendants seek to avoid addressing this issue at trial. Id. The findings and recommendations do not authorize a reply to objections and plaintiff therefore has not had an opportunity to respond to this request.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Federal Rule of Civil Procedure 56(g) authorizes but does not require the order requested by defendants. It provides:
If the court does not grant all the relief requested by the motion [for summary judgment], it may enter an order stating any material fact - including an item of damages or other relief - that is not genuinely in dispute and treating the fact as established in the case.
Fed. R. Civ. 56(g). Federal Rule of Civil Procedure 56(e) provides:
If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e).
In support of their motion for summary judgment, defendants tendered evidence that plaintiff's medical records did not indicate plaintiff "sustained any physical damage as a result of" the alleged delay in treatment. Defendants' Statement of Undisputed Facts (DSUF) ¶ 28, ECF No. 72-2. Plaintiff's response to this statement of undisputed fact was that he could neither admit nor deny it "because based on what a doctor told him at Mercy Folsom, he believes his heart was damaged as a result of the delay." ECF No. 86 at 5 n.6 (citing Response to DSUF ¶ 28). The magistrate judge properly found the alleged statements by the doctor to be hearsay and deemed undisputed fact 28 admitted. ...