(PC) McMillan v. Delgado et al, No. 1:2019cv00444 - Document 48 (E.D. Cal. 2021)

Court Description: ORDER ADOPTING 46 Findings and Recommendations; ORDER GRANTING Defendants' Motion for Summary Judgment 38 , signed by District Judge Dale A. Drozd on 11/17/2021. CASE CLOSED(Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK M. McMILLIAN, 12 13 14 15 16 17 Plaintiff, v. O. DELGADO, et.al., Defendants. ) ) ) ) ) ) ) ) ) ) No.: 1:19-cv-00444-NONE-SAB (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. Nos. 44, 46) Plaintiff Patrick M. McMillain is appearing pro se in this civil rights action brought pursuant to 18 42 U.S.C. § 1983. Plaintiff, who was at the time of the events in question an inmate at the California 19 Correctional Institution in Tehachapi, California, incurred serious injuries when he was struck twice 20 by “less than lethal” riot control weapons during a prison riot. He advances Eighth amendment 21 excessive force and state law negligence claims in this lawsuit. (Doc. No. 32.) This matter was 22 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On September 29, 2021, the assigned magistrate judge issued findings and recommendations 24 recommending that defendants be granted summary judgment in their favor, finding that the 25 undisputed facts on summary judgment demonstrated that defendants did not use excessive force 26 during the prison riot and acted reasonably in responding to that riot. (Doc. No. 46.) The findings and 27 recommendations were served on the parties and contained notice that objections were due within 28 twenty-one days. (Id. at 18.) No objections were filed and the time to do so has passed. 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a de 2 novo review of this case. Having carefully reviewed the entire file, the court finds the findings and 3 recommendations to be supported by the record and by proper analysis. 4 Accordingly, the court orders that: 5 1. The findings and recommendations filed on September 9, 2021, (Doc. No. 44), are adopted 6 in full; 7 2. Defendants’ motion for summary judgment (Doc. No. 38) is GRANTED; and 8 3. The Clerk of the Court is directed to enter judgment in favor of defendants close this case. 9 10 11 12 IT IS SO ORDERED. Dated: November 17, 2021 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2