-SMS (PC) Hendon v. Reed et al, No. 1:2005cv00790 - Document 44 (E.D. Cal. 2011)

Court Description: ORDER VACATING 42 Findings and Recommendations, and REFERRING Matter back to Magistrate Judge; ORDER Deeming Defendants' 36 Motion for Summary Judgment VACATED from the Court's Calendar Pending further Proceedings signed by Judge Oliver W. Wanger on 3/21/2011. (Sant Agata, S)

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-SMS (PC) Hendon v. Reed et al Doc. 44 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CARLOS HENDON, 10 11 12 13 CASE NO. 1:05-cv-00790-OWW-SKO PC Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS, AND REFERRING MATTER BACK TO MAGISTRATE JUDGE v. REED, et al., (ECF No. 42) Defendants. ORDER DEEMING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT VACATED FROM THE COURT’S CALENDAR PENDING FURTHER PROCEEDINGS 14 15 (ECF No. 36) 16 / 17 Plaintiff Carlos Hendon (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the 19 second amended complaint, filed February 25, 2008, against Defendants Lopez, Granillo, and Julie 20 B. (“Defendants”) for violation of the Eighth Amendment. The matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On July 9, 2010, Defendants filed a motion for summary judgment. Plaintiff filed an 23 opposition on August 2, 2010. The Magistrate Judge issued findings and recommendations on 24 January 31, 2011, recommending that Defendants’ motion for summary judgment be granted. The 25 parties were given thirty days to file objections and no objections were filed. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 27 de novo review of this case. Having carefully reviewed the entire file, the Court vacates the findings 28 1 Dockets.Justia.com 1 and recommendations. The Court has reviewed the second amended complaint and although 2 Defendants’ summary judgment motion frames Plaintiff’s claim as one for excessive force without 3 objection from Plaintiff, the Court finds that the claim in this action may be more appropriately 4 analyzed as one for unconstitutional conditions of confinement, which entails review under a 5 different legal standard. 6 Accordingly, the Court refers this action back to the Magistrate Judge for further review of 7 the second amended complaint and Defendants’ motion for summary judgment. To the extent 8 appropriate, the Magistrate Judge shall issue new findings and recommendations and/or orders. In 9 light of 28 U.S.C. § 476(a)(1), the Civil Justice Reform Act, Defendants’ motion for summary 10 judgment shall be deemed vacated from the Court’s calendar pending resolution of the issues raised 11 in this order.1 12 Accordingly, it is HEREBY ORDERED that: 13 1. The findings and recommendations, filed January 31, 2011, are VACATED; 14 2. The action is REFERRED BACK to the Magistrate Judge for further proceedings 15 16 consistent with this order; and 3. 17 Defendants’ motion for summary judgment is DEEMED VACATED from the Court’s calendar pending resolution of the issues raised in this order. 18 19 IT IS SO ORDERED. 20 Dated: March 21, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 1 The Court’s action is purely administrative and the parties need take no further action. The Court will issue a ruling on Defendants’ pending motion for summary judgment following resolution by the Magistrate Judge of the issues raised in this order. 2

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