(PC) Burnett v. Sedillo et al, No. 1:2016cv01672 - Document 45 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 10/3/2018 recommending that Defendant, Dyer's 37 MOTION FOR SUMMARY JUDGMENT be granted. Referred to Chief Judge Lawrence J. O'Neill; Objections to F&R due within 14-Days. (Lundstrom, T)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 CARLOS BURNETT, 8 Plaintiff, 9 10 vs. K. SEDILLO, et al., 11 Defendants. 12 1:16-cv-01672-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT DYER’S MOTION FOR SUMMARY JUDGMENT BE GRANTED (ECF No. 37.) OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 13 14 I. BACKGROUND 15 Carlos Burnett (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 16 with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds with 17 Plaintiff’s original Complaint filed on November 3, 2016, against defendants Meier, Reynaga, 18 Huckleberry, Garcia, and Dyer, for use of excessive force in violation of the Eighth Amendment.1 19 (ECF No. 1.) 20 On August 15, 2018, defendant Dyer filed a motion for summary judgment. (ECF No. 21 37. On October 1, 2018, Plaintiff filed a statement of non-opposition to the motion. (ECF No. 22 44.) 23 II. MOTION FOR SUMMARY JUDGMENT 24 Summary judgment is appropriate when the moving “party shows that there is no genuine 25 dispute as to any material fact, and the moving party is entitled to judgment as a matter of law.” 26 27 28 1 On October 30, 2017, the court dismissed all other claims and defendants from this action, based on Plaintiff’s failure to state a claim. (ECF No. 15.) Plaintiff’s claims for violation of due process, failure to protect him, and retaliation were dismissed from this action; and defendants Sedillo, Davidson, and Nuckles were dismissed from this action. (Id.) 1 1 Fed. R. Civ. P. 56(c). The moving party bears the initial responsibility of informing the court of 2 the basis for its motion, and identifying those portions of the record that it believes demonstrate 3 the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 4 (1986). 5 “It is the practice of courts in the Eastern District of California to grant summary 6 judgment to the moving party if the non-moving party files an affirmative statement of non- 7 opposition. See, e.g., Estate of Byrd v. Teater, No. 1:06–cv–00900–OWW–GSA, 2008 WL 8 4104309, at *1 (E.D. Cal. Sep.2, 2008); Infa–Lab, Inc. v. KDS Nail Int’l, No. 2:07–cv–01270– 9 WBS–EFB, 2009 WL 161197, at *1 (E.D. Cal. Jan.22, 2009); Ransom v. Johnson, No. 1:05–cv– 10 00086–OWW–GSA, 2010 WL 1791128, at *1 (E.D. Cal. May 3, 2010); Quock v. Staples, Inc., 11 No. 2:10–cv–00199–GEB–JFM, 2011 WL 2198694, at *1,3 (E.D. Cal. Jun.6, 2011); and Hunter 12 v. Youngblood, No. 1:07–cv–01126–AWI–SKO, 2014 WL 1255909, at *1 (E.D. Cal. Mar.25, 13 2014).” Thorns v. Shannon, No. 2:11-CV-01826 MCE, 2015 WL 1916476, at *9 (E.D. Cal. Apr. 14 27, 2015). “See also Keen v. Am. Home Mortg. Servicing, Inc., No. 2:09–cv–001026–FCD– 15 KJM, 2010 WL 624306, at *1 (E.D. Cal. Feb.10, 2010) (treating plaintiff’s filing of a statement 16 of non-opposition to a motion to dismiss as a voluntary dismissal under Fed. R. Civ. P. 41(a)).” 17 Id. 18 III. DISCUSSION 19 Defendant Dyer’s motion for summary judgment is made on the basis that the undisputed 20 evidence shows that Plaintiff cannot establish that defendant Dyer subjected him to excessive 21 force in violation of the Eighth Amendment and in fact, it is undisputed that defendant Dyer did 22 not subject Plaintiff to any force. 23 demonstrating that Plaintiff testified at his deposition that it was actually Lieutenant Nuckles, not 24 Officer Dyer, who picked him up and slammed him to the ground, and that defendant Dyer did 25 not subject Plaintiff to any force. (Declaration of Joseph R. Wheeler, ECF No. Exh. A, Plaintiff’s 26 Depo. 53:18-23, 54:1-4, pp. 56-60. 61:19-25, 62:1-3.) 27 28 Defendant Dyer has submitted admissible evidence Plaintiff’s statement of non-opposition states in its entirety, “Plaintiff choose[s] to file a non-opposition to Defendant Dyer’s motion for summary judgment.” (ECF No. 44 at 1.) 2 1 Based on defendant Dyer’s motion and Plaintiff’s statement of non-opposition, defendant 2 Dyer’s motion for summary judgment should be granted as to Plaintiff’s excessive force claim 3 against him, and defendant Dyer should be dismissed from this action. 4 IV. CONCLUSION AND RECOMMENDATIONS 5 For the reasons set forth above, IT IS HEREBY RECOMMENDED that: 6 1. 7 8 Defendant Dyer’s motion for summary judgment, filed on August 15, 2018, be GRANTED; 2. 9 Summary judgment be GRANTED in favor of defendant Dyer on Plaintiff’s claim for use of excessive force against him; 10 3. Defendant Dyer be DISMISSED from this action; 11 4. This action proceed against defendants Meier, Reynaga, Huckleberry, and Garcia, 12 for use of excessive force in violation of the Eighth Amendment; and 13 5. 14 These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 16 fourteen (14) days of the date of service of these Findings and Recommendations, any party 17 may file written objections with the Court. The document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 19 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 20 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 21 (9th Cir. 1991)). This case be referred back to the Magistrate Judge for further proceedings. 22 23 24 25 IT IS SO ORDERED. Dated: October 3, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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