(PC) Johnson v. Dovey et al

Filing 123

ORDER Adopting 112 FINDINGS AND RECOMMENDATION and DENYING Plaintiff's 76 Motion for Summary Judgment signed by District Judge Lawrence J. O'Neill on 3/22/2011. (Sant Agata, S)

(PC) Johnson v. Dovey et al

Doc. 123

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Plaintiff also moves for reconsideration of the Magistrate Judge's order denying appointment of an expert witness. The Court will adjudicate the motion by separate order.
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UNITED STATES DISTRICT COURT

GARRISON S. JOHNSON, Plaintiff, v. JOHN DOVEY, et al., Defendants. /

CASE NO. 1:08-CV-00640-LJO-DLB PC ORDER ADOPTING FINDINGS AND RECOMMENDATION AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOC. 112)

Plaintiff Garrison S. Johnson ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On July 26, 2010, Plaintiff filed a motion for summary judgment. Docs. 76, 77, 78, 80. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On February 11, 2011, the Magistrate Judge filed a Findings and Recommendations which was served on the parties and which contained notice to the parties that any objection to the Findings and Recommendations was to be filed within twenty-one days. Plaintiff filed an Objection to the Findings and Recommendations on February 28, 2011.1 In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.

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Plaintiff's primary argument is that the evidence, namely the crime incident reports, indicates that excessive force was used. However, that evidence at best demonstrates that force was used, not whether it was excessive in violation of the Eighth Amendment. See Hudson v. McMillian, 503 U.S. 1, 7-9 (1992). Construing the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the Court finds that there is a triable issue of material fact as to Plaintiff's claims. Accordingly, IT IS HEREBY ORDERED that: 1. 2. 3. The Findings and Recommendations, filed February 11, 2011, is adopted in full; Plaintiff's motion for summary judgment, filed July 26, 2010, is denied; and The matter is referred to the magistrate judge for further proceedings.

IT IS SO ORDERED. Dated: b9ed48 March 22, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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