Gutierrez v. Gutierrez
ORDER adopting 103 FINDINGS AND RECOMMENDATIONS and denying 98 Motion to Dismiss signed by District Judge Dale A. Drozd on 2/7/2017. (Lundstrom, T)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
G. J. GUTIERREZ,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, AND DENYING
DEFENDANT’S MOTION TO DISMISS
(Doc. Nos. 98, 103)
Plaintiff G. J. Gutierrez is a state prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff’s Eighth
Amendment claim of the excessive use of force and failure to protect against defendant A.
Gutierrez. This matter was referred to the assigned magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 302.
On September 16, 2016, defendant filed a motion to dismiss pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure, for dilatory prosecution on the part of plaintiff and due to
plaintiff’s failure to serve discovery responses. (Doc. No. 98.) On December 2, 2016, the
assigned magistrate judge filed findings and recommendations addressing that motion. (Doc. No.
103.) The magistrate judge found, based on a status report filed by defense counsel and a letter
filed by plaintiff, that plaintiff had previously been unable to communicate with defendant and the
court due to his hospitalization. (Id.) The magistrate judge further found that plaintiff was at that
time prepared to proceed with prosecuting this action. Accordingly, the magistrate judge
recommended that defendant’s motion to dismiss be denied. (Id.) Those findings and
recommendations were served on the parties and contained a notice that objections thereto were
to be filed within fourteen days. (Id.) More than fourteen days have passed, and no objections
In accordance with 28 U.S.C. § 636(b)(1)(C), the 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.
1. The December 2, 2016 findings and recommendations (Doc. No. 103) are adopted in
2. Defendant’s motion to dismiss (Doc. No. 98) is denied; and
3. This matter is referred back to the assigned magistrate judge for further proceedings
consistent with this order.
IT IS SO ORDERED.
February 7, 2017
UNITED STATES DISTRICT JUDGE
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