(PC) Perez v. Padilla, No. 1:2014cv01730 - Document 53 (E.D. Cal. 2017)

Court Description: ORDER Adopting 47 FINDINGS AND RECOMMENDATIONS, DENYING Defendant's 30 Motion to Dismiss signed by District Judge Dale A. Drozd on 6/8/2017. (Sant Agata, S)
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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 JOSEPH PEREZ, 12 13 14 15 No. 1:14-cv-01730-DAD-EPG Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS R. PADILLA, (Doc. Nos. 30 & 47) Defendant. 16 17 18 Plaintiff Joseph Perez is a former state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action filed pursuant to 42 U.S.C. § 1983. This case now proceeds on 20 plaintiff’s first amended complaint, filed on April 15, 2015, against defendant R. Padilla, a 21 correctional officer, for violation of the Eighth Amendment based on the alleged excessive use of 22 force on plaintiff. (Doc. Nos. 12, 25, 28.) The matter was referred to a United States Magistrate 23 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 On November 15, 2016, defendant filed a Rule 12(b)(6) motion to dismiss on the grounds 25 that plaintiff’s claim is barred by the favorable termination rule established in Heck v. Humphrey, 26 512 U.S. 477 (1994), that plaintiff failed to state a claim for excessive use of force in violation of 27 the Eighth Amendment, and that defendant is entitled to qualified immunity. (Doc. No. 30.) On 28 December 21, 2016, plaintiff filed a response to that motion. (Doc. No. 35.) The assigned 1 1 magistrate judge heard oral argument with respect to the motion to dismiss on January 31, 2017. 2 (Doc. No. 42.) 3 On March 8, 2017, the magistrate judge issued findings and recommendations, 4 recommending that defendant’s motion to dismiss be denied. (Doc. No. 47.) The parties were 5 provided an opportunity to file objections to the findings and recommendations within twenty-one 6 days. (Id.) Defendant has filed objections to the findings and recommendations. (Doc. No. 49.) 7 Plaintiff did not object to the findings and recommendations or file a reply to defendant’s 8 objections. 9 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 10 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 11 court finds the findings and recommendations to be supported by the record and proper analysis.1 12 Accordingly, 13 1. The March 8, 2017 findings and recommendations (Doc. No. 47) are adopted; 14 2. Defendant’s motion to dismiss (Doc. No. 30) is denied; and 15 3. This case is referred back to the assigned magistrate judge for further proceedings. 16 IT IS SO ORDERED. 17 Dated: June 8, 2017 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 1 Whether plaintiff’s “lunging forward, striking his head into the window of an office door” (Doc. No 47 at 3) was directed toward correctional officers and was part of the resisting/obstructing conduct for which he suffered a prison disciplinary conviction is difficult to determine at this stage of the proceedings. However, and in any event, plaintiff alleges that after his head hit the office window and he was bleeding, defendant Padilla slammed him to the ground. (Doc. No. 24 at 5.) It is clear that an Eighth Amendment excessive use of force claim based on that alleged conduct is not Heck barred for the reasons set forth in the magistrate judge’s findings and recommendations. 2