Windham v. Marin et al

Filing 90

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES W. WINDHAM,

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Plaintiff,

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v.

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M. MARIN et al.,

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No. 1:14-cv-01636-DAD-BAM

Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
DEFENDANTS’ MOTIONS TO DISMISS
PLAINTIFF’S ACTION UNDER FED. R. CIV.
P. 41(b)
(Doc. Nos. 61, 65, 66, 76)

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Plaintiff Charles W. Windham is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action under 42 U.S.C. § 1983. This action proceeds on plaintiff’s Eighth

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Amendment claims of excessive use of force against defendants M. Marin, D. Uribe, W. Rasley,

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J. Contreras, A. Capano, R. Rubio, and Doe #1; and for deliberate indifference to serious medical

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needs against defendants C. Navarro, V. Morales, M. Marin and S. Shiver.

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On February 5, 2016, defendants filed a motion to dismiss this action under Rule 41(b) of

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the Federal Rules of Civil Procedure for the failure to prosecute and failure to comply with two

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prior court orders. (Doc. No. 61.) On April 4, 2016, the assigned magistrate judge issued

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findings and recommendations, finding that plaintiff had shown good cause for his previous lack

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of compliance, and recommending that defendants’ motion to dismiss be denied. (Doc. No. 65.)
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On August 18, 2016, defendants filed a second motion to dismiss under Rule 41(b),

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arguing that they had re-served plaintiff with the motion for summary judgment and unanswered

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interrogatories, but that plaintiff had still not responded. (Doc. No. 66.) On October 19, 2016,

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the magistrate judge issued findings and recommendations, recommending that defendants’

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second motion to dismiss should also be denied, because plaintiff had by then filed an opposition

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to the motion for summary judgment and provided responses to the interrogatories in question.

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(Doc. No. 76.)

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The findings and recommendations addressing both motions were served on the parties,

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providing fourteen-day deadlines to file written objections thereto with the court. The time for

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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

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de novo review of the case. Having carefully reviewed the entire file, the court finds that the

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findings and recommendations are supported by the record and proper analysis.

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Accordingly,

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1. The April 4, 2016 findings and recommendations (Doc. No. 65) are adopted in full;

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2. Defendants’ first motion to dismiss under Rule 41(b) (Doc. No. 61) is denied;

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3. The October 19, 2016 findings and recommendations (Doc. No. 76) are adopted in

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full; and

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4. Defendants’ second motion to dismiss under Rule 41(b) (Doc. No. 66) is denied; and

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

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IT IS SO ORDERED.
Dated:

January 4, 2017
UNITED STATES DISTRICT JUDGE

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