Sims v. Cabrera et al

Filing 53

ORDER Adopting FINDINGS AND RECOMMENDATIONS, Denying Defendant's Motion For Summary Judgment On The Pleadings, Denying Plaintiff's Motion For Summary Judgment, And Denying Parties' Motions To Strike (Docs. 18 , 27 , 29 , 30 and 41 ), signed by District Judge Lawrence J. O'Neill on 1/23/2015. (Fahrney, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 QUINCY SIMS, Plaintiff, 11 12 v. 13 M. CABRERA, 14 Defendant. Case No. 1:12-cv-01904-LJO-SKO (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS, DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND DENYING PARTIES’ MOTIONS TO STRIKE (Docs. 18, 27, 29, 30, and 41) 15 _____________________________________/ 16 17 Plaintiff Quincy Sims (“Plaintiff”), a state prisoner proceeding pro se and in forma 18 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 21, 2012. This 19 action for damages is proceeding against Defendant M. Cabrera (“Defendant”) for failing to 20 protect Plaintiff from the threat of harm by gang members or affiliates while he was at Kern 21 Valley State Prison, in violation of the Eighth Amendment of the United States Constitution. 22 This action was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(b)(1)(B) and Local Rule 302. On December 8, 2014, the Magistrate Judge filed a Findings 24 and Recommendations which contained notice to the parties that Objections to the Findings and 25 Recommendations were to be filed within twenty days. No Objections were filed. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 27 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings 28 and Recommendations to be supported by the record and by proper analysis. 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendations, filed on December 8, 2014, is adopted in full; 3 2. Defendant’s motion for judgment on the pleadings for failure to exhaust is 4 5 DENIED, without prejudice to renewal under Rule 56 (doc. 18); 3. 6 Plaintiff’s motion for summary judgment is DENIED, without prejudice, as procedurally deficient (doc. 27); 7 4. Defendant’s motion to strike Plaintiff’s “surreply” is DENIED (doc. 29); and 8 5. Plaintiff’s motion to strike Defendant’s motion to strike is DENIED as moot (doc. 9 30). 10 11 12 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill January 23, 2015 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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