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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES W. WINDHAM, 12 Plaintiff, 13 v. 14 M. MARIN et al., 15 16 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) 17 18 19 Plaintiff Charles W. Windham is a state prisoner proceeding pro se and in forma pauperis 20 in this civil rights action under 42 U.S.C. § 1983. This action proceeds on plaintiff’s Eighth 21 Amendment claims of excessive use of force against defendants M. Marin, D. Uribe, W. Rasley, 22 J. Contreras, A. Capano, R. Rubio, and Doe #1; and for deliberate indifference to serious medical 23 needs against defendants C. Navarro, V. Morales, M. Marin and S. Shiver. 24 On February 5, 2016, defendants filed a motion to dismiss this action under Rule 41(b) of 25 the Federal Rules of Civil Procedure for the failure to prosecute and failure to comply with two 26 prior court orders. (Doc. No. 61.) On April 4, 2016, the assigned magistrate judge issued 27 findings and recommendations, finding that plaintiff had shown good cause for his previous lack 28 of compliance, and recommending that defendants’ motion to dismiss be denied. (Doc. No. 65.) 1 1 On August 18, 2016, defendants filed a second motion to dismiss under Rule 41(b), 2 arguing that they had re-served plaintiff with the motion for summary judgment and unanswered 3 interrogatories, but that plaintiff had still not responded. (Doc. No. 66.) On October 19, 2016, 4 the magistrate judge issued findings and recommendations, recommending that defendants’ 5 second motion to dismiss should also be denied, because plaintiff had by then filed an opposition 6 to the motion for summary judgment and provided responses to the interrogatories in question. 7 (Doc. No. 76.) 8 The findings and recommendations addressing both motions were served on the parties, 9 providing fourteen-day deadlines to file written objections thereto with the court. The time for 10 11 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 12 de novo review of the case. Having carefully reviewed the entire file, the court finds that the 13 findings and recommendations are supported by the record and proper analysis. 14 Accordingly, 15 1. The April 4, 2016 findings and recommendations (Doc. No. 65) are adopted in full; 16 2. Defendants’ first motion to dismiss under Rule 41(b) (Doc. No. 61) is denied; 17 3. The October 19, 2016 findings and recommendations (Doc. No. 76) are adopted in 18 full; and 19 4. Defendants’ second motion to dismiss under Rule 41(b) (Doc. No. 66) is denied; and 20 5. This matter is referred back to the assigned magistrate judge for further proceedings. 21 22 IT IS SO ORDERED. Dated: January 4, 2017 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2

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