(PC) Gibson v. Beer, et al, No. 1:2003cv05445 - Document 328 (E.D. Cal. 2009)

Court Description: ORDER Adopting Findings and Recommendations, and Denying In Part and Granting In Part Defendants' Motion for Summary Judgment 322 , signed by Judge Oliver W. Wanger on 1/21/09. (Gil-Garcia, A)

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(PC) Gibson v. Beer, et al Doc. 328 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROBERT D. GIBSON, 10 11 12 CASE NO. 1:03-CV-5445 OWW DLB-PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DENYING IN PART AND GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. BEER, et al., 13 Defendants. (Doc. 322) / 14 15 Plaintiff Robert D. Gibson, a state prisoner proceeding pro se and in forma pauperis, has filed 16 this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 17 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302. 18 On November 24, 2008, the Magistrate Judge filed a Findings and Recommendations herein 19 which was served on the parties and which contained notice to the parties that any objections to the 20 Findings and Recommendations were to be filed within thirty days. The parties have not filed timely 21 objections to the Findings and Recommendations. 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 23 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings 24 and Recommendations to be supported by the record and by proper analysis. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The Findings and Recommendations, filed November 24, 2008, is adopted in full; 27 2. Defendant Gonzales’ and Defendant Hayward’s motion for summary adjudication 28 on plaintiff’s excessive force claim against them is DENIED; 1 Dockets.Justia.com 1 3. 2 3 on plaintiff’s retaliation claim against them is GRANTED; 4. 4 5 Defendant Gonzales’ and Defendant Hayward’s motion for summary adjudication Defendant Beer’s motion for summary adjudication on plaintiff’s retaliation claim against him is DENIED; and 5. This matter shall be set for trial on plaintiff’s claims against defendants Gonzales, 6 Hayward and Beer of excessive force, in violation of the Eighth Amendment, and 7 against defendant Beer on plaintiff’s claim of retaliation in violation of the First 8 Amendment. 9 10 IT IS SO ORDERED. Dated: January 21, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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