Gutierrez v. Gutierrez

Filing 110

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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G. J. GUTIERREZ,

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Plaintiff,

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v.

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A. GUTIERREZ,

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No. 1:13-cv-00421-DAD-SAB

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, AND DENYING
DEFENDANT’S MOTION TO DISMISS
Defendant.

(Doc. Nos. 98, 103)

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Plaintiff G. J. Gutierrez is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff’s Eighth

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Amendment claim of the excessive use of force and failure to protect against defendant A.

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Gutierrez. This matter was referred to the assigned magistrate judge pursuant to 28 U.S.C.

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§ 636(b)(1)(B) and Local Rule 302.

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On September 16, 2016, defendant filed a motion to dismiss pursuant to Rule 41(b) of the

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Federal Rules of Civil Procedure, for dilatory prosecution on the part of plaintiff and due to

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plaintiff’s failure to serve discovery responses. (Doc. No. 98.) On December 2, 2016, the

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assigned magistrate judge filed findings and recommendations addressing that motion. (Doc. No.

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103.) The magistrate judge found, based on a status report filed by defense counsel and a letter

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filed by plaintiff, that plaintiff had previously been unable to communicate with defendant and the
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court due to his hospitalization. (Id.) The magistrate judge further found that plaintiff was at that

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time prepared to proceed with prosecuting this action. Accordingly, the magistrate judge

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recommended that defendant’s motion to dismiss be denied. (Id.) Those findings and

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recommendations were served on the parties and contained a notice that objections thereto were

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to be filed within fourteen days. (Id.) More than fourteen days have passed, and no objections

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were filed.

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In accordance with 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of

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this case. Having carefully reviewed the entire file, the court finds the findings and

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recommendations to be supported by the record and by proper analysis.

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Accordingly,

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1. The December 2, 2016 findings and recommendations (Doc. No. 103) are adopted in

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full;

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2. Defendant’s motion to dismiss (Doc. No. 98) is denied; and

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3. This matter is referred back to the assigned magistrate judge for further proceedings

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consistent with this order.
IT IS SO ORDERED.
Dated:

February 7, 2017
UNITED STATES DISTRICT JUDGE

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