Windham v. Marin et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and DENYING Defendants' Motions to Dismiss Plaintiff's Action Under Fed.R.Civ.P. 41(b) 61 , 65 , 66 , 76 , signed by District Judge Dale A. Drozd on 1/4/17: This matter is REFERRED back to the assigned magistrate judge for further proceedings. (Hellings, J)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CHARLES W. WINDHAM,
M. MARIN et al.,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
DEFENDANTS’ MOTIONS TO DISMISS
PLAINTIFF’S ACTION UNDER FED. R. CIV.
(Doc. Nos. 61, 65, 66, 76)
Plaintiff Charles W. Windham is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action under 42 U.S.C. § 1983. This action proceeds on plaintiff’s Eighth
Amendment claims of excessive use of force against defendants M. Marin, D. Uribe, W. Rasley,
J. Contreras, A. Capano, R. Rubio, and Doe #1; and for deliberate indifference to serious medical
needs against defendants C. Navarro, V. Morales, M. Marin and S. Shiver.
On February 5, 2016, defendants filed a motion to dismiss this action under Rule 41(b) of
the Federal Rules of Civil Procedure for the failure to prosecute and failure to comply with two
prior court orders. (Doc. No. 61.) On April 4, 2016, the assigned magistrate judge issued
findings and recommendations, finding that plaintiff had shown good cause for his previous lack
of compliance, and recommending that defendants’ motion to dismiss be denied. (Doc. No. 65.)
On August 18, 2016, defendants filed a second motion to dismiss under Rule 41(b),
arguing that they had re-served plaintiff with the motion for summary judgment and unanswered
interrogatories, but that plaintiff had still not responded. (Doc. No. 66.) On October 19, 2016,
the magistrate judge issued findings and recommendations, recommending that defendants’
second motion to dismiss should also be denied, because plaintiff had by then filed an opposition
to the motion for summary judgment and provided responses to the interrogatories in question.
(Doc. No. 76.)
The findings and recommendations addressing both motions were served on the parties,
providing fourteen-day deadlines to file written objections thereto with the court. The time for
the filing of objections has passed, and no objections have been filed.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a
de novo review of the case. Having carefully reviewed the entire file, the court finds that the
findings and recommendations are supported by the record and proper analysis.
1. The April 4, 2016 findings and recommendations (Doc. No. 65) are adopted in full;
2. Defendants’ first motion to dismiss under Rule 41(b) (Doc. No. 61) is denied;
3. The October 19, 2016 findings and recommendations (Doc. No. 76) are adopted in
4. Defendants’ second motion to dismiss under Rule 41(b) (Doc. No. 66) is denied; and
5. This matter is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.
January 4, 2017
UNITED STATES DISTRICT JUDGE
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