Smith v. Allison et al

Filing 126

ORDER ADOPTING 114 SECOND AMENDED FINDINGS AND RECOMMENDATIONS IN FULL; ORDER STRIKING 108 Findings and Recommendations, 113 Amended Findings and Recommendations; ORDER GRANTING IN PART AND DENYING IN PART 69 Motion for Summary Judgment; ORDER DENYING 88 Motion to Strike; and ORDER DENYING 94 Plaintiff's Motion for Additional Discovery signed by District Judge Lawrence J. O'Neill on 12/31/2014. Defendant Gallagher is dismissed from this action. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE CHRISTOPHER SMITH,
Plaintiff,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND

v.

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Case No. 1:10-cv-01814-LJO-JLT (PC)

ALLISON, et al.,

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(Docs. 69, 88, 90, 94, 108, 113, 114)
Defendants.
_____________________________________/
Plaintiff, Lawrence Christopher Smith, is a state prisoner proceeding pro se and in forma

16 pauperis in this civil rights action under 42 U.S.C. § 1983 which he filed on October 1, 2010. The
17 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and
18 Local Rule 302.
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On October 17, 2014, the Magistrate Judge filed a Findings and Recommendations to grant

20 and deny Defendants' motion for summary judgment based on Plaintiff's failure to exhaust
21 available administrative remedies. (Doc. 108.) Due to typographical errors, an Amended
22 Findings and Recommendations on November 19, 2014 and a final, Second Amended Findings
23 and Recommendations issued that same day. (Docs. 113, 114.) The Second Amended Findings
24 and Recommendations was served on the parties and contained notice to the parties that objections
25 to it were to be filed within thirty days. Plaintiff filed his objections on December 29, 2014.
26 (Doc. 125.) Defendants filed none.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a

28 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings

1 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.

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the Second Amended Findings and Recommendations, filed on November 19, 2014
(Doc. 114), is adopted in full;

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the Findings and Recommendations and Amended Findings and Recommendations,

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filed on October 17, 2014 (Doc. 108) and November 19, 2014 (Doc. 113) are

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STRICKEN from the record;

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2.

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the motion for summary judgment, filed July 22, 2014 (Doc. 69), is GRANTED IN
PART and DENIED IN PART as follows:

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a.

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Gallagher is DISMISSED from this action;

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b.

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The motion as to Defendant Goss is DENIED as to the due process claim
and GRANTED as to the retaliation claim;

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The motion as to Defendant Gallagher is GRANTED and Defendant

the motion by Defendants Goss and Gallagher that a preliminary hearing be set to
resolve any factual disputes is DENIED;

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the motion to strike Plaintiff's opposition to their motion for summary judgment,

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filed by Defendants Goss and Gallagher on August 25, 2014 (Doc. 88), is

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DENIED;

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5.

Plaintiff's objections to the Court's order (Doc. 86) staying discovery in this matter

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until the ruling on Defendants' motion for summary judgment issues, filed on

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August 29, 2014 (Doc. 90), is OVERRULED and to the extent it may be construed

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as a motion for reconsideration it is DENIED; and

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6.

Plaintiff's motion for additional discovery, filed September 19, 2014 (Doc. 94) is

DENIED.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

December 31, 2014

UNITED STATES DISTRICT JUDGE
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