Deneal Young v. D Balkind et al

Filing 179

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Jesus G. Bernal re MOTION for Partial Summary Judgment as to Plaintiff's Claims against Defendants Lowe & Gonzalez and Plaintiff's First Amendment Claim against Defendant Balkind 123 , Report and Recommendation (Issued), 167 . IT IS HEREBY ORDERED (1) Defendants' motion is granted in part and denied in part for the reasons stated in the Report and Recommendation. (mrgo)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

Plaintiff,

13
14
15

Case No. CV 12-7278 JGB(JC)

DENEAL YOUNG,
v.

ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

D. BALKIND, et al.,

16

Defendants.

17
18

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, all

19 documents filed in connection with the Motion for Partial Summary Judgment
20 (“Defendants’ Motion”) filed by defendants D. Balkind, Lowe, and T. Gonzalez
21 (collectively “Moving Defendants”), and all of the records herein, including the
22 attached Report and Recommendation of United States Magistrate Judge (“Report
23 and Recommendation”), objections/amended objections to the Report and
24 Recommendation from plaintiff (“Plaintiff’s Objections”) and defendant Balkind
25 (“Balkind Objections”) (collectively “Objections”), and plaintiff’s opposition to
26 the Balkind Objections. The Court has further made a de novo determination
27 ///
28 ///

1 of those portions of the Report and Recommendation to which objection is made.1
2 The Court concurs with and accepts the findings, conclusions, and
3 recommendations of the United States Magistrate Judge and overrules the
4 Objections.2 This Court specifically addresses certain portions of the Objections
5 below.
6

Defendant Balkind objects that the Report and Recommendation improperly

7 inferred from the record that plaintiff could have believed his retaliation claim
8 against defendant Balkind had been properly exhausted because such claim was
9 included in Appeal No. 11-0346 which was submitted to and decided on the merits
10 at the third level. (Balkind Objections at 2-4). The gravamen of defendant
11 Balkind’s argument, however, is that evidence in the record actually supports
12 different inferences (Balkind Objections at 2-4) – which is insufficient to meet the
13 defendant’s burden to demonstrate that there is no genuine dispute as to such facts,
14 and that no reasonable trier of fact could find other than for defendant Balkind on
15 the issue. At the summary judgment stage the Court generally must draw all
16 reasonable inferences in favor of the non-moving party. See Matsushita Electric
17 Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Fed. R.
18 Civ. P. 56(c)).
19

The other objections asserted by defendant Balkind and plaintiff are

20 essentially based on the same arguments previously raised by the respective
21 parties, and which the Report and Recommendation properly concludes have no
22 merit.
23 ///
24
25
26
27

1

This Court declines to consider new arguments raised for the first time in Objections to
the Magistrate Judge’s Report and Recommendation. See United States v. Howell, 231 F.3d
615, 621 (9th Cir. 2000), cert. denied, 534 U.S. 831 (2001).
2

The Court uses the terms “January 29 Incident,” “March 30 Incident,” and “Appeal No.

28 11-0346” as they are defined in the Report and Recommendation.
2

1

Accordingly, IT IS HEREBY ORDERED: (1) Defendants’ Motion is

2 granted in part and denied in part for the reasons stated in the Report and
3 Recommendation; (2) partial summary judgment is granted in favor of Moving
4 Defendants on all of plaintiff’s remaining claims except the Eighth Amendment
5 excessive force claim against defendant Balkind predicated on the January 29
6 Incident, and the First Amendment retaliation claim against defendant Balkind
7 predicated on the March 30 Incident; (3) in light of the previous dismissal of
8 plaintiff’s official capacity claims against all defendants and the First Amendment
9 retaliation claim against defendant Nixon (Docket No. 43, 45, 93), and the filing of
10 plaintiff’s January 22, 2014 Notice of Intent Not to File Amended Complaint
11 (Docket No. 44), this action shall proceed solely on the individual capacity claims
12 and defendants which remain, namely the Eighth Amendment excessive force
13 claim against defendants Balkind and Nixon predicated on the January 29 Incident
14 and the First Amendment retaliation claim against defendant Balkind predicated on
15 the March 30 Incident.
16

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and

17 the Report and Recommendation on plaintiff and counsel for Moving Defendants.
18
19
20
21
22
23

IT IS SO ORDERED.
DATED: May 6, 2016
________________________________________
____________________________
_
_
HONORABLE JESUS G. BERNAL
HONORABLE
O
BERNA
UNITED STATES DISTRICT JUDGE
JUD

24
25
26
27
28
3