Larry Smith v. Gonzales et al
ORDER ADOPTING 97 Findings and Recommendations and DENYING Defendants' 87 Motion for Summary Judgment signed by District Judge Dale A. Drozd on 9/5/2021. (Sant Agata, S)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 1:17-cv-00436-DAD-GSA (PC)
J. GONZALES, et al.,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
DEFENDANTS’ MOTION FOR SUMMARY
(Doc. Nos. 87, 97)
Plaintiff Larry Smith is a state prisoner proceeding pro se and in forma pauperis with this
civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 16, 2021, the assigned magistrate judge issued findings and recommendations,
recommending that defendants’ motion for summary judgment (Doc. No. 87) be denied. (Doc.
97.) Specifically, the magistrate judge found that the evidence advanced by plaintiff on summary
judgment was sufficient to demonstrate the existence of a genuine dispute of material facts that
precluded the granting of summary judgment in favor of defendants with respect to both
plaintiff’s retaliation claim as well as his excessive use of force and failure to protect claims. (Id.
at 31, 33.) The findings and recommendations were served upon all parties and contained notice
that any objections were to be filed within fourteen days of service. (Id. at
34.) No objections have been filed to date and the time to do so has since passed.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Local Rule 304, this
court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
court finds the findings and recommendations to be supported by the record and proper analysis.
The findings and recommendations issued on June 16, 2021 (Doc. No. 97) are
adopted in full;
Defendants’ motion for summary judgment (Doc. No. 87) is denied;
This case proceeds on the following claims brought by plaintiff:
a. A claim for use of excessive use of force in violation of the Eighth
Amendment against defendants Sergeant Gonzales, Correctional Officer (CO)
Johnson, CO Castro, CO Meier, CO Flores, and CO Potzernitz;
b. A claim of retaliation in violation of the First Amendment against defendant
Sergeant Gonzales; and
c. A claim for failure to protect in violation of the Eighth Amendment against
defendant CO Scaife; and
This case is referred back to the magistrate judge for further proceedings and
IT IS SO ORDERED.
September 5, 2021
UNITED STATES DISTRICT JUDGE
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