Opinion
CASE NO. 1:11-cv-00999-BAM PC
01-07-2013
STEVEN D. PARKS, Plaintiff, v. O. ONYEJE, et al., Defendants.
ORDER STRIKING PLAINTIFF'S MOTION
FOR PARTIAL SUMMARY JUDGMENT AS
PROCEDURALLY DEFICIENT
(ECF No. 35)
Plaintiff Steven D. Parks 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 is proceeding on Plaintiff's first amended complaint, filed May 30, 2012, against Defendant Onyeje for deliberate indifference to Plaintiff's Valley Fever in violation of the Eighth Amendment. (ECF No. 13.)
Defendant filed a motion to dismiss for failure to exhaust administrative remedies and for failure to state a claim on December 3, 2012. (ECF No. 26.) Plaintiff has not yet filed an opposition to the motion. On December 20, 2012, Plaintiff filed a notice of interlocutory appeal. (ECF No. 38.) The appeal has been processed and is pending before the Ninth Circuit Court of Appeals. On December 19, 2012, Plaintiff filed the instant motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 35.)
"Each motion for summary judgment or summary adjudication shall be accompanied by a 'Statement of Undisputed Facts' that shall enumerate discretely each of the specific material facts relied upon in support of the motion and cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to establish that fact. The moving party shall be responsible for the filing of all evidentiary documents cited in the moving papers." Local Rule 260(a). Plaintiff's motion for partial summary judgment, which is comprised of only three paragraphs, does not satisfy the criteria set forth in Local Rule 260(a).
A moving party's failure to separately enumerate the proffered undisputed facts makes a responding party's burden more difficult. In fact-specific cases, the court is disinclined to overlook the failure to submit a separately enumerated Statement of Undisputed Facts. Given that the failure to dispute an offered undisputed fact is normally deemed an admission, the court will not consider the narrative portion of the motion to be sufficient compliance with the Local Rule.
Based on the foregoing, Plaintiff's motion for partial summary judgment is HEREBY STRICKEN from the record as procedurally defective.
IT IS SO ORDERED.
Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE