Villery v. California Department of Corrections, et al.

Filing 183

ORDER ADOPTING 182 Findings and Recommendations signed by District Judge Ana de Alba on 01/25/2023. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JARED M. VILLERY,

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Plaintiff,

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No. 1:15-cv-00987-ADA-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

v.
(ECF No. 182)

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RICHARD KENDALL, et al.,

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Defendants.

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Plaintiff Jared M. Villery (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against

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Defendants Kendall, Acosta, Jones, Guerrero, Woodward,1 and Grimmig for deliberate indifference

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in violation of the Eighth Amendment, and against Defendant Macomber2 for promulgation of a

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policy to deny single cell housing for inmates with serious mental disorders in violation of the

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Eighth Amendment. Plaintiff’s claims arise out of allegations that he developed Post-Traumatic

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Stress Disorder (“PTSD”) while in the custody of the California Department of Corrections and

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Rehabilitation (“CDCR”). Plaintiff claims that at multiple institutions and over several years, his

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Erroneously sued as “Woodard.”
Effective December 12, 2022, Secretary Macomber has assumed the position of Secretary for
the California Department of Corrections and Rehabilitation. The Court notes that under Federal
Rule of Civil Procedure 25(d), Secretary Macomber should be substituted for former Secretaries
Beard, Kernan, and Allison with respect to Plaintiff’s claim for a violation of his rights based on a
policy promulgated in the Secretary’s official capacity.
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PTSD was not properly considered by prison officials in determining his housing status.

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On September 13, 2021, Defendants filed a motion for summary judgment. (ECF No. 170.)

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Plaintiff was provided with notice of the requirements for opposing a motion for summary

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judgment. (ECF No. 170 -7); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988).

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On September 23, 2021, the assigned Magistrate Judge stayed this action pending Plaintiff’s

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interlocutory appeal with the Ninth Circuit Court of Appeals, Case Number 21-15425. (ECF No.

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171.) On October 19, 2022, upon resolution of the interlocutory appeal, the Magistrate Judge issued

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an order lifting the stay of this action and resetting the briefing schedule for Defendants’ motion

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for summary judgment. (ECF No. 180.) Plaintiff was directed to file an opposition or statement

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of non-opposition to Defendants’ motion for summary judgment within thirty days from the date

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of service of the Court’s order, and was warned that failure to file an opposition or statement of

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non-opposition in compliance with the Court’s order would result in dismissal of this action, with

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prejudice, for failure to prosecute. (Id. at 2.)

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On December 2, 2022, following the expiration of the deadline for Plaintiff to file his

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opposition, Defendants filed a “Notice of Non-Opposition to Defendants’ Motion for Summary

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Judgment,” notifying the Court that Defendants had not received an opposition to their motion for

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summary judgment and requesting that the Court dismiss this action with prejudice for failure to

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prosecute. (ECF No. 181.)

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On December 6, 2022, the Magistrate Judge issued findings and recommendations

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recommending dismissal of this action, with prejudice, for failure to prosecute and for failure to

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obey a court order. (ECF No. 182.) Those findings and recommendations were served on the

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parties and contained notice that any objections thereto were to be filed within fourteen days after

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service. (Id. at 5.) No objections have been filed, and the deadline to do so has passed. Plaintiff

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has not otherwise communicated with the Court regarding this action.

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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 concludes that the

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Magistrate Judge’s findings and recommendations are supported by the record and by proper

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analysis.
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Accordingly,

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are ADOPTED IN FULL;
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The findings and recommendations issued on December 6, 2022, (ECF No. 182),

This action is dismissed, with prejudice, for failure to prosecute and failure to obey
a court order; and

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The Clerk of the Court is directed to terminate all pending motions and close this
case.

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IT IS SO ORDERED.
Dated:

January 25, 2023
UNITED STATES DISTRICT JUDGE

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