Thomas v. Wilber et al

Filing 96

ORDER ADOPTING 87 Findings and Recommendations, GRANTING In Part and DENYING In Part Defendants' 62 Motion for Summary Judgment, and REFFERRING Matter Back to Magistrate Judge to Set for Trial, signed by District Judge Anthony W. Ishii on 4/29/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JASON LATRELL THOMAS,
Plaintiff,

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v.
M. WILBER, et al.,
Defendants.

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Case No. 1:10-cv-00006-AWI-SKO (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, GRANTING IN
PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT, AND REFFERRING MATTER
BACK TO MAGISTRATE JUDGE TO SET
FOR TRIAL
(Docs. 62 and 87)

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_____________________________________/
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Plaintiff Jason Latrell Thomas, a state prisoner proceeding pro se and in forma pauperis,

18 filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 4, 2010. This action is
19 proceeding on Plaintiff=s verified complaint against Defendants Salinas, Jr., Maldonado, Wilber,
20 Vikjord, Frescura, Price, Hernandez, and Castro (“Defendants”) on Plaintiff=s numerous First
21 Amendment and Eighth Amendment claims. Plaintiff=s claims arise from a series of allegedly
22 related events which occurred at California State Prison-Corcoran in 2006 and 2007. During the
23 time of the events in question, Plaintiff was housed in the Security Housing Unit at Corcoran, and
24 Defendants were employed by the California Department of Corrections and Rehabilitation at
25 Corcoran.
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The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

27 636(b)(1)(B) and Local Rule 302, and on March 12, 2014, the Magistrate Judge issued findings
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1 and recommendations recommending Defendants’ motion for summary judgment be granted in
2 part and denied in part. Objections were due on or before April 4, 2014. No objections were filed.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a

4 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings
5 and Recommendations to be supported by the record and by proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

The findings and recommendations filed on March 12, 2014, are adopted in full;

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2.

Defendants’ motion for summary judgment, filed on May 20, 2013, is GRANTED

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IN PART and DENIED IN PART as follows:
a.

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claim arising out of being called a snitch and a child molester;
b.

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Defendants’ motion is GRANTED as to Plaintiff’s Eighth Amendment

Defendants’ motion is GRANTED as to Plaintiff’s Eighth Amendment
claim arising out of the food tampering;

c.

Defendants’ motion is DENIED as to Plaintiff’s Eighth Amendment

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excessive force claim against Defendants Vikjord and Hernandez arising

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out of escort on August 25, 2007;

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d.

out of delivery of the letter marked “deceased;”

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Defendants’ motion is GRANTED as to Plaintiff’s retaliation claim arising

e.

Defendants’ motion is GRANTED as to Plaintiff’s retaliation claim arising

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out of the threat to file and the subsequent filing of the false RVR and the

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claim is dismissed;

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f.

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Defendants’ motion is GRANTED as to Plaintiff’s retaliation claim arising
out of the food tampering;

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Defendants’ motion is GRANTED as to Plaintiff’s retaliation claim against

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Defendants Vikjord and Hernandez for the use of force on or around

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February 18, 2007, but DENIED as to the claim against Defendants

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Frescura and Price;

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h.

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Defendants’ motion is GRANTED as to Plaintiff’s retaliation claim arising
out of being called snitch, rat, and child molester;

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i.

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Defendants’ motion is GRANTED as to Plaintiff’s retaliation claim arising
out of the cell searches and property destruction;

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j.

Defendants’ motion is DENIED as to Plaintiff’s retaliation claim against

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Defendant Vikjord arising out of escort on August 25, 2007, and

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GRANTED as to Defendant Hernandez arising out of that incident;

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k.

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Defendants Salinas, Jr. and Maldonado; and

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l.

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Defendants’ motion is GRANTED as to Plaintiff’s retaliation claims against

Defendants Vikjord, Hernandez, Frescura, and Price’s motion for qualified
immunity is DENIED;

3.

This matter is referred back to the Magistate Judge for further proceedings,

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including setting a jury trial on Plaintiff’s (1) Eighth Amendment excessive force

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claim against Defendants Vikjord and Hernandez, (2) First Amendment retaliation

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claim against Defendants Vikjord and Hernandez arising out of the use of force on

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August 25, 2007, and (3) First Amendment retaliation claim against Defendants

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Frescura and Price arising out of the use of force on or around February 18, 2007.

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IT IS SO ORDERED.

20 Dated: April 29, 2014

SENIOR DISTRICT JUDGE

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