(PC) Smith v. Hernandez et al, No. 1:2016cv01267 - Document 95 (E.D. Cal. 2019)

Court Description: ORDER Adopting 92 Findings and Recommendations, Denying Plaintiff's Motion for Injunctive Relief 63 , and Granting Defendants' Amended Motion for Summary Judgment 92 , signed by Chief Judge Lawrence J. O'Neill on 1/25/19. (Gonzalez, R)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 DELBERT J. SMITH, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING PLAINTIFF’S MOTION FOR INJUNCTIVE RELIEF, AND GRANTING DEFENDANTS’ AMENDED MOTION FOR SUMMARY JUDGMENT Plaintiff, 14 v. 15 16 Case No.: 1:16-cv-01267-LJO-SAB (PC) C. HERNANDEZ, et al., 17 Defendants. (Doc. Nos. 63, 86, 92) 18 19 20 21 Plaintiff Delbert J. Smith is appearing pro se and in forma pauperis in this action 22 pursuant to 42 U.S.C. § 1983. He proceeds on his First Amended Complaint against Defendants 23 Hernandez, Flores-Alvarenga, Zuniga, and Cramer for excessive force in violation of the Eighth 24 Amendment and retaliation in violation of the First Amendment, and against Defendant 25 Hernandez for deliberate indifference in violation of the Eighth Amendment. (Doc. No. 32.) The 26 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 27 Local Rule 302. 28 /// 1 1 On June 20, 2018, Plaintiff filed a motion to compel, in which he sought a court order 2 directing non-defendant prison officials to return certain confiscated property to him. (Doc. No. 3 63.) Later, on November 6, 2018, Defendants filed an amended motion for partial summary 4 judgment, pursuant to Federal Rule of Civil Procedure 56. (Doc. No. 86.) 5 On December 27, 2018, the assigned Magistrate Judge issued findings and 6 recommendations, first construing Plaintiff’s motion to compel as a motion for preliminary 7 injunction, and recommending that the motion be denied. (Doc. No. 92.) The Magistrate Judge 8 also recommended that Defendants’ amended, partial summary judgment motion be granted, in 9 its entirety. Those findings and recommendations were served on the parties and contained 10 notice that any objections thereto were to be filed within thirty days. (Id. at 12-13.) Plaintiff 11 timely filed objections dated January 21, 2019. (Doc. No. 94.) 12 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted 13 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 14 the findings and recommendations are supported by the record and by proper analysis. 15 Plaintiff’s objections merely state that he stands by the allegations of his First Amended 16 Complaint and objects to the dismissal of any claim on summary judgment. The Court finds that 17 the Magistrate Judge properly addressed Plaintiff’s opposition and that Defendants have met 18 their burden for partial summary judgment to be granted. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. The findings and recommendations issued on December 27, 2018, (Doc. No. 92), are 21 adopted in full; 22 2. Plaintiff’s motion to compel, filed on June 20, 2018 (Doc. No. 63), is denied; 23 3. Defendants’ amended motion for partial summary judgment, filed on November 6, 24 2018 (Doc. No. 86), is granted; 25 4. Plaintiff’s claims against Defendant Zuniga for excessive force in violation of the 26 Eighth Amendment, and retaliation in violation of the First Amendment, are 27 dismissed with prejudice; 28 /// 2 1 5. Plaintiff’s Eighth Amendment excessive force claim against Defendant Cramer is 2 dismissed, without prejudice, as barred by the favorable termination rule of Heck v. 3 Humphrey, 12 U.S. 477 (1994); and 4 6. This matter is referred back to the assigned Magistrate Judge for further proceedings consistent with this order. 5 6 7 8 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ January 25, 2019 UNITED STATES CHIEF DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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