McClain v. Gonzales et al

Filing 88

ORDER SUA SPONTE Dismissing Defendant A. L. Smith, signed by Magistrate Judge Jennifer L. Thurston on 10/24/2011. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NAKIA MCCLAIN,

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Case No. 1:07-cv-00945 JLT (PC)

Plaintiff,
ORDER SUA SPONTE DISMISSING
DEFENDANT SMITH

vs.
L. GONZALES, et al.,
Defendants.

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/

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On August 30, 2011, Plaintiff filed his pretrial statement indicating that Defendant Smith had

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been dismissed from the action. (Doc. 80 at 10). However, there appears to be a discrepancy in that

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Defendant’s previous motion for summary judgement (Doc. 51), addressed only Plaintiff’s claim of

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excessive force as to Smith and had failed to address Plaintiff’s claim of retaliation as to this defendant.

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Based on Defendants’ moving papers, the Court’s order of August 19, 2011 addressing Defendants’

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motion for summary judgment did not dismiss Plaintiff’s claim of retaliation as to Defendant Smith.

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(Doc. 75 at 19).

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Review of the operative complaint indicates that Plaintiff did initially name Defendant Smith in

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his cause of action for retaliation. (Doc. 1 at 19). However, according to Plaintiff’s deposition

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testimony, Plaintiff has withdrawn this claim. (Doc. 51-8 at 36). Alternatively, the Court has reviewed

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all evidence provided in this case along with the entire record and concludes that Plaintiff has failed to
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demonstrate that a reasonable jury could conclude that Defendant Smith retaliated against Plaintiff. See

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28 U.S.C. §1915(e)(2) (“the court shall dismiss the case at any time if the court determines that . . . the

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action fails to state a claim”); see also Byrd v. Maricopa County Sheriff’s Department, 565 F.3d 1205,

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1212 (9th Cir. 2009) (affirming district court’s sua sponte dismissal of a prisoner’s equal protection claim

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even though the defendants did not move for summary judgment on the claim).

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Accordingly, the Court ORDERS Defendant A. L. Smith dismissed from the action.

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IT IS SO ORDERED.

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Dated: October 24, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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