United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL
SUMMARY JUDGMENT WITHOUT PREJUDICE; [DOC. NO. 64] DENYING AS
MOOT DEFENDANT UMUGBE'S MOTION TO STRIKE [DOC. NO.
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE
Lonnie Lee Poslof, Jr., a California prisoner proceeding
pro se, brings this action pursuant to 42 U.S.C.
§ 1983, alleging violations of his Eighth Amendment
rights by various medical professionals and correctional
officials. See Doc. No. 18. Plaintiff has filed a
motion for partial summary judgment as to his Eighth
Amendment claims, as well as a supporting declaration.
See Doc. No. 64. Defendant Umugbe moves to strike
certain paragraphs of Plaintiff's supporting declaration.
See Doc. No. 76. For the reasons set forth below,
the Court DENIES Plaintiff's motion for
partial summary judgment without prejudice and DENIES
AS MOOT Defendant Umugbe's motion to strike.
action arises out of events occurring as a result of
Plaintiff's fear of being placed on a non-designated yard
with General Population (“GP”) inmates and his
resulting suicide attempt. Plaintiff's allegations are
recited at length in the Court's May 7, 2019 Order
Granting In Part and Denying In Part Defendants' Motion
to Dismiss Plaintiff's Third Amended Complaint.
See Doc. No. 43. Plaintiff has filed a Fourth
Amended Complaint alleging various Eighth Amendment claims
against Defendants Rastegari, Canedo, Torres, and Umugbe.
Plaintiff now moves for partial summary judgment as to his
inadequate medical care claims against all defendants
See Doc. No. 64.
party may move for summary judgment, identifying each claim
or defense - or the part of each claim or defense - on which
summary judgment is sought. The court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
party seeking summary judgment bears the initial burden of
establishing the basis of its motion and of identifying the
portions of the declarations, pleadings, and discovery that
demonstrate absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A dispute about a material fact is genuine if there is
sufficient evidence for a reasonable jury to return a verdict
for the non-moving party. Id. at 248.
applying the standard set forth under Rule 56, district
courts must “construe liberally motion papers and
pleadings filed by pro se inmates and . . . avoid
applying summary judgment rules strictly.” Thomas
v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However,
as the moving party, a pro se litigant cannot
establish a sufficient basis for summary judgment simply with
unsupported assertions in legal memoranda or generalized
references to evidence. See S.A. Empresa, Etc. v. Walter
Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982);
Fed.R.Civ.P. 56(c), (e). And although Federal Rule of Civil
Procedure 56 allows a motion for summary judgment to be filed
“at any time until 30 days after the close of all
discovery, ” the rule contemplates that the moving
party will support his factual allegations with materials
obtained through discovery and the opposing party be allowed
the opportunity to pursue discovery prior to responding to a
motion for summary judgment. See Fed. R. Civ. P.
Plaintiff filed his motion for summary judgment without the
benefit of any discover He fails to support his motion with
any competent evidence demonstrating the absence of a genuine
issue of material fact as to whether Defendants violated his
Eighth Amendment right to adequate medical care. Plaintiff
submits only a sworn declaration consisting of immaterial
statements and legal conclusions. In sum, Plaintiffs motion
is unsupported by evidence and premature and must be denied
on these grounds. See, e.g., Moore v. Hubbard,
No. 06cv2187, 2009 U.S. Dist. LEXIS 20513, 2009 WL
688897, at *1 (E.D. Cal. Mar. 13, 2009) (recommending that
pre-discovery motion for summary judgment be denied as
premature); see also Burlington N. Santa Fe R.R. Co. v.
Assiniboine & Sioux Tribes of Fort Peck Reservation,
323 F.3d 767, 773 (9th Cir. 2003) (stating that when “a
summary judgment motion is filed so early in the litigation,
before a party has had any realistic opportunity to pursue
discovery relating to its theory of the case, ”
nonmovants should be permitted to take discovery prior to
considering motion for summary judgment).
on the foregoing, the Court DENIES
Plaintiffs motion for partial summary judgment without
prejudice and DENIES AS MOOT Defendant
Umugbe's motion to strike.