United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL
WITHOUT PREJUDICE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AND DENIAL OF PLAINTIFF'S RELATED MOTIONS IN OPPOSITION
(ECF Nos. 44, 47)
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE
David Crew (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. This action
proceeds on Plaintiff's second amended complaint against
Defendant Patel for deliberate indifference in violation of
the Eighth Amendment arising from his intentional refusal or
delay of Plaintiff's medical care related to the removal
of staples from Plaintiff's stomach from a prior surgery.
(ECF No. 24.)
June 2017 through February 2018, Plaintiff filed a motion to
file an emergency amended complaint, as well as a series of
motions in support. (ECF Nos. 30, 39, 45.) In addition, the
parties filed various motions relating to discovery disputes
and other matters. (ECF Nos. 38, 40, 41, 42, 43, 49, 50.)
September 11, 2017, Defendant Patel filed a motion for
summary judgment on the ground that Plaintiff failed to
exhaust available administrative remedies. (ECF No. 44.)
September 29, 2017, Plaintiff filed a motion to file a
factual dispute of Defendant's summary judgment motion, a
motion to file a criminal complaint, a motion for emergency
trial by jury, and a motion to dismiss the summary judgment
motion to exhaust. (ECF No. 47.) It appeared that Plaintiff
intended this motion to be an opposition to Defendant's
motion for summary judgment. Defendant Patel filed a response
on October 27, 2017. (ECF No. 48.)
March 29, 2018 the Court issued an order granting
Plaintiff's motions regarding the filing of a third
amended complaint, and denying, without prejudice to
re-filing, the other pending motions related to discovery.
(ECF No. 52.) The Court also vacated the discovery and
scheduling order issued on June 13, 2017.
before the Court are Defendant's motion for summary
judgment and Plaintiff's related motions filed in
opposition. These motions are deemed submitted.
to the Court's March 29, 2018 order, Plaintiff's
third amended complaint is currently due on or before April
1, 2018. (ECF No. 52.) Based on the unsettled nature of the
operative complaint and the absence of a scheduling order,
the Court finds it appropriate to recommend denial of
Defendant's motion for summary judgment, without
prejudice to re-filing. In the event that new claims or
defendants are added to this action and the Court issues an
amended discovery and scheduling order, the Court will reset
the applicable deadlines for discovery and the filing of any
dispositive motions. As such, Defendant will be permitted to
re-file a motion for summary judgment on the ground of
failure to exhaust available administrative remedies which
addresses all claims and defendants that have been allowed to
proceed in this action.
respect to Plaintiff's motion to file a factual dispute
of Defendant's summary judgment, and related motions,
Plaintiff is advised that this filing does not comply with
Federal Rule of Civil Procedure 56(c) or Local Rule 260(b).
In the event that Defendant files a renewed motion for
summary judgment, Plaintiff is warned that any opposition
must comply with Federal Rule of Civil Procedure 56(c) and
Local Rule 260(b).
extent Plaintiff seeks to bring a criminal complaint in
regards to any actions or inactions by Defendant, Plaintiff
is advised that the Court cannot compel any local prosecutor
to instigate a criminal prosecution of this matter. See,
e.g., Bettencourt v. Parker, No.
1:16-cv-00150-DAD-BAM (PC), 2016 WL 4137242, at *2 (E.D. Cal.
Aug. 4, 2016); Badwi v. Hedgpeth, No. C 08-02221 SBA
PR, 2011 WL 89729, at *1 (N.D. Cal. Jan. 11, 2011).
Plaintiff's request to set this matter for trial, as the
Court has granted Plaintiff's motion to amend the
complaint, this request is premature. The Court is required
to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a).
Plaintiff's amended complaint, or any portion thereof, is
subject to dismissal if it is frivolous or malicious, if it
fails to state a claim upon which relief may be granted, or
if it seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28
U.S.C. § 1915(e)(2)(B)(ii). Once Plaintiff has filed a
third amended complaint, it will be screened in due course.