Pulliam v. Lozano et al

Filing 94

ORDER signed by District Judge Lawrence J. O'Neill on 3/25/2013 adopting 91 FINDINGS AND RECOMMENDATIONS and denying 62 Motion for Summary Judgment. (Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOSEPH R. PULLIAM, 11 1:07-cv-0964-LJO-MJS (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 12 v. 13 (ECF No. 62) 14 M. LOZANO, et al., 15 Defendants. 16 / 17 Plaintiff Joseph R. Pulliam (“Plaintiff”) is a state prisoner proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On November 30, 2012, the Magistrate Judge filed a Findings and Recommendations, 21 recommending that Defendants Lozano and Mason’s motion for summary judgment be denied. 22 (ECF No. 91.) Defendants have filed objections. (ECF No. 92.) Plaintiff has filed a response to 23 Defendants’ objections. (ECF No. 93.) 24 /// 25 /// 26 /// 27 28 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 304, this 2 Court has conducted a de novo review of this case. Defendants argue Plaintiff’s claims are barred 3 by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997) because 4 a finding in Plaintiff’s favor would require a reversal of Plaintiff’s Rules Violation Report in which 5 Plaintiff was found guilty of battery on a peace officer. (ECF No. 92.) In this matter, Plaintiff’s 6 claims would be barred by Heck if a finding in his favor would affect his loss of good time credits. 7 Defendants fail to explain why even though Plaintiff was found guilty of a battery, his actual loss 8 of good time credits was for assault rather than battery. In this case, a finding in Plaintiff’s favor 9 would not affect his loss of good time credits for assault. Having carefully reviewed the entire file, 10 the Court finds the Findings and Recommendations to be supported by the record and by proper 11 analysis. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. 14 The Findings and Recommendations, filed November 30, 2012, are adopted in full; and 15 2. Defendants Lozano and Mason’s motion for summary judgment is DENIED. 16 17 18 19 20 21 22 23 24 25 26 IT IS SO ORDERED. Dated: March 25, 2013 /s/ Lawrence J. O'Neill B9ed48 UNITED STATES DISTRICT JUDGE 27 28 2

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