(PC) Gutierrez v. Gutierrez, No. 1:2013cv00421 - Document 110 (E.D. Cal. 2017)

Court Description: ORDER adopting 103 FINDINGS AND RECOMMENDATIONS and denying 98 Motion to Dismiss signed by District Judge Dale A. Drozd on 2/7/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 G. J. GUTIERREZ, 12 Plaintiff, 13 v. 14 A. GUTIERREZ, 15 No. 1:13-cv-00421-DAD-SAB ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DENYING DEFENDANT’S MOTION TO DISMISS Defendant. (Doc. Nos. 98, 103) 16 17 18 Plaintiff G. J. Gutierrez is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff’s Eighth 20 Amendment claim of the excessive use of force and failure to protect against defendant A. 21 Gutierrez. This matter was referred to the assigned magistrate judge pursuant to 28 U.S.C. 22 § 636(b)(1)(B) and Local Rule 302. 23 On September 16, 2016, defendant filed a motion to dismiss pursuant to Rule 41(b) of the 24 Federal Rules of Civil Procedure, for dilatory prosecution on the part of plaintiff and due to 25 plaintiff’s failure to serve discovery responses. (Doc. No. 98.) On December 2, 2016, the 26 assigned magistrate judge filed findings and recommendations addressing that motion. (Doc. No. 27 103.) The magistrate judge found, based on a status report filed by defense counsel and a letter 28 filed by plaintiff, that plaintiff had previously been unable to communicate with defendant and the 1 1 court due to his hospitalization. (Id.) The magistrate judge further found that plaintiff was at that 2 time prepared to proceed with prosecuting this action. Accordingly, the magistrate judge 3 recommended that defendant’s motion to dismiss be denied. (Id.) Those findings and 4 recommendations were served on the parties and contained a notice that objections thereto were 5 to be filed within fourteen days. (Id.) More than fourteen days have passed, and no objections 6 were filed. 7 In accordance with 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of 8 this case. Having carefully reviewed the entire file, the court finds the findings and 9 recommendations to be supported by the record and by proper analysis. 10 Accordingly, 11 1. The December 2, 2016 findings and recommendations (Doc. No. 103) are adopted in 12 full; 13 2. Defendant’s motion to dismiss (Doc. No. 98) is denied; and 14 3. This matter is referred back to the assigned magistrate judge for further proceedings 15 16 17 consistent with this order. IT IS SO ORDERED. Dated: February 7, 2017 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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