Opinion
Case No. 1:13-cv-01565-AWI-SKO (PC)
06-06-2016
ARTHUR T. BUSSIERE, Plaintiff, v. Dr, W, KOKOR, et al., Defendants.
FINDINGS AND RECOMMENDATION THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE DENIED, WITHOUT PREJUDICE, ON PROCEDURAL GROUNDS
(Doc. 51)
FIFTEEN DAY OBJECTION DEADLINE
Plaintiff, Arthur T. Bussiere, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 27, 2013. This action is proceeding on Plaintiff's Fist Amended Complaint (Doc. 12) against Defendants W. Kokor, M.D., N. Hashemi, M.D., and A. Tiggs-Brown, P.A., for deliberate indifference to Plaintiff's medical needs in violation of the Eight Amendment. (See Doc. 14.)
On February 16, 2016, Defendants filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 51.) However, Defendants did not concurrently serve Plaintiff with the requisite notice of the requirements for opposing their motion. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). Plaintiff nevertheless filed an opposition. (Doc. 55.) Without engaging in harmless error analysis, this Court finds that, had Plaintiff had been informed of the requirements to oppose a motion under Rule 56, he may have requested consideration of Defendants' motion be postponed under subsection (d), pending ruling on discovery motions he previously filed and completion of discovery. (See Docs. 37, 39, 44.) Since Plaintiff is an inmate proceeding pro se, he must be given proper notice of what is required as well as opportunity to present an adequate opposition to Defendants' motion for summary judgment.
These motions will be addressed via separate orders.
Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that Defendants' motion for summary judgment, filed on February 16, 2016, (Doc. 51), be DENIED, without prejudice to refiling with concurrent requisite noticed to Plaintiff.
Though both the discovery and dispositive motion deadlines have passed (see Doc. 26), they will be extended via an amended discovery and scheduling order subsequent to consideration of these findings and recommendations by the District Judge.
Though both the discovery and dispositive motion deadlines have passed (see Doc. 26), they will be extended via an amended discovery and scheduling order subsequent to consideration of these findings and recommendations by the District Judge. --------
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. Dated: June 6 , 2016
/s/ Sheila K . Oberto
UNITED STATES MAGISTRATE JUDGE