Larry Smith v. Gonzales et al

Filing 99

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)

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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 LARRY SMITH, 12 13 14 15 16 No. 1:17-cv-00436-DAD-GSA (PC) Plaintiff, v. J. GONZALES, et al., ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants. (Doc. Nos. 87, 97) 17 18 Plaintiff Larry Smith is a state prisoner proceeding pro se and in forma pauperis with this 19 civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On June 16, 2021, the assigned magistrate judge issued findings and recommendations, 22 recommending that defendants’ motion for summary judgment (Doc. No. 87) be denied. (Doc. 23 97.) Specifically, the magistrate judge found that the evidence advanced by plaintiff on summary 24 judgment was sufficient to demonstrate the existence of a genuine dispute of material facts that 25 precluded the granting of summary judgment in favor of defendants with respect to both 26 plaintiff’s retaliation claim as well as his excessive use of force and failure to protect claims. (Id. 27 at 31, 33.) The findings and recommendations were served upon all parties and contained notice 28 that any objections were to be filed within fourteen days of service. (Id. at 1 1 2 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 3 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 4 court finds the findings and recommendations to be supported by the record and proper analysis. 5 Accordingly, 6 1. 7 The findings and recommendations issued on June 16, 2021 (Doc. No. 97) are adopted in full; 8 2. Defendants’ motion for summary judgment (Doc. No. 87) is denied; 9 3. This case proceeds on the following claims brought by plaintiff: 10 a. A claim for use of excessive use of force in violation of the Eighth 11 Amendment against defendants Sergeant Gonzales, Correctional Officer (CO) 12 Johnson, CO Castro, CO Meier, CO Flores, and CO Potzernitz; 13 b. A claim of retaliation in violation of the First Amendment against defendant 14 Sergeant Gonzales; and 15 c. A claim for failure to protect in violation of the Eighth Amendment against 16 17 defendant CO Scaife; and 4. 18 19 20 21 This case is referred back to the magistrate judge for further proceedings and scheduling. IT IS SO ORDERED. Dated: September 5, 2021 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 2

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